LMS International Ltd & Ors v Styrene Packaging and Insulation Ltd & Ors

The factory at Unit D was the subject of a number of checks by both the Health and Safety Executive and the Fire Authority in the years before the fire. The key events and documents are outlined in paragraphs 77-94 below. Thereafter, at paragraphs 95-100 below, I summarise the fire prevention/protection system in place at Unit D at the time of the fire.

Narrative

On 19^th July 1990, there was an HSE inspection of Unit D “to support possible enforcement of the safe storage of expanded polystyrene”. The inspection found that, although a storage area had been partitioned off from the work room, the fire-resisting integrity of the partition was incomplete and “large amounts of material were still kept in the work room”. The report recommended that “the partition around the storage area should be made fire resisting and that only expanded polystyrene in use should be kept in the work room. Support will be given for enforcement”.

On 23^rd October 1997, there was an inspection of Unit D, this time by the West Yorkshire Fire Service. They were extremely concerned because, although the First Defendants were employing 60 odd people at Unit D, there was no Fire Certificate. The inspector noted the large quantities of polystyrene and associated processes and concluded that “the risk factor could be high”. A concern was also noted that “no means of early warning in case of fire has been provided”. In cross-examination, Mr Michael Edge, the managing director of the First Defendants, confirmed that, not only was there no early warning (detection) system in place in 1997, but that no such system was installed at any time prior to the fire.

As a consequence of the inspection in October, the First Defendants were warned in writing on 30 October 1997 that:

“It appears the premises are being put to a use designated under the above Act as requiring a Fire Certificate and application for a Fire Certificate has not yet been made. Continuing to put premises to such use without applying for a Fire Certificate is an offence. Unless an application for a Fire Certificate is made, without delay, the Fire Authority will take further action.”

Prompted by this stern warning, on 4^th November, the First Defendants made an application for a Fire Certificate.

There was a further inspection by the West Yorkshire Fire Service on 17^th November. Following that inspection they wrote to the HSE to say:

“…The following process/storage hazards were noted which are of evident concern:

Polystyrene manufacturing and storage

This inspection was undertaken in connection with the First Defendants’ application for a Fire Certificate. On 3^rd December, the West Yorkshire Fire Service wrote to the First Defendants to inform them that the Fire Authority was “not satisfied with the fire precautions at the premises”. The letter enclosed a Notice identifying the steps that needed to be taken by the First Defendants before 4^th March 1998. Eighteen separate steps were identified in the Notice including the provision of a manually operated electrical fire alarm system and a fire alarm system with automatic detectors to cover specific areas of Unit D, principally in the lower ground floor. It was put to Mr Michael Edge during his cross-examination that this was a “massive list of failures to comply” on the part of the First Defendants. Mr Edge did not accept that, arguing that this was an old building which the First Defendants were renovating, and that therefore some non-compliance was inevitable.

On 26^th February 1998, there was a joint inspection by the HSE’s inspector, Mr Kay, and the Fire Authority. The HSE report that followed recommended that “unexpanded polystyrene bead should be treated as highly flammable because of the Pentane blowing agent which it contains … The storage area should be separated from the remainder of the working area by the provision of a fixed barrier of no less that one hours fire resistance. The storage area should be fitted with either smoke or heat detectors connected into the fire alarm system or alternatively sounding into the working areas.” The report went on:

“All areas where polystyrene is handled should be regarded as a process fire risk area … The company should examine the reasons for fires occurring at the cutting machinery just after the block forming moulds. If the source of the fires cannot be determined in consideration of improving local ventilation, or allowing the blocks to breathe for a while longer before cutting should be considered.”

For reasons which will become apparent, it is, in my judgment, highly significant that, at this time, the First Defendants obviously had a problem with fires at or on the hot wire cutting machinery. Mr Kay said in evidence that this information came directly from his discussions with the First Defendants’ employees.

The West Yorkshire Fire Service also produced their own note of this inspection and, on 2^nd March, wrote to the First Defendants to point out that the action which they had required in their letter of 3^rd December 1997, and the accompanying Notice, had not been completed. The First Defendants were given an extension until 4^th June 1998 to put these matters in hand. At the same time, the HSE also wrote to the First Defendants, on 9^th March 1998, which made trenchant criticisms of the storage areas, describing them as “poorly ventilated, internal and unzoned”. The letter went on to say that there was no fire resisting separation between the storage area and the remainder of the building. It identified “at least 80 tons” of polystyrene bead stored in the area. The letter also repeated the points about polystyrene as a process fire risk. As to fires generally, the HSE said:

“Fires had occurred at one of the early cutting stations, just after the polystyrene had been formed into blocks. You dealt with this by instructing production personnel to use portable fire extinguishers. You should examine the reasons for fires occurring at the cutting machinery just after the block forming moulds. If the source of the fire cannot be determined, then consideration of improving local ventilation, or allowing the blocks to breathe for a while longer before cutting should be considered.”

Mr Michael Edge was asked about this document in cross-examination. As with a number of these documents, Mr Edge was keen to play down their impact and he disagreed with particular elements of the letter. For instance, he did not accept that there were at least 80 tons of bead in the area. The credibility of Mr Edge’s attempts to minimise the seriousness of these letters were not helped by the fact that, at the time, the First Defendants did not apparently respond to any of these critical letters, much less disagree with or dispute their contents.

By 9^th June 1998, the measures required in the Notice dated 3^rd December 1997 had been carried out and the West Yorkshire Fire Service wrote to the First Defendants to say so. Of course, the matters raised by the HSE inspection of February 1998, and set out in detail in their letter of 9 March 1998, were not directly connected with the Fire Certificate. It appears that the First Defendants took no steps whatsoever to comply with those separate requirements and, on 11^th September 1998, they were chased by the HSE, who threatened an Improvement Notice if the First Defendants did not comply.

Mr Michael Edge was asked a good deal of questions about the HSE criticisms of February/March 1998, and in particular their apparent requirement that the storage areas be segregated from the working areas. Mr Edge said that “I opted for more open areas”. He confirmed that he did not partition the upper working area in the way recommended by the Fire Authority. He said that his concern was that, if the storage areas were partitioned, fires starting in another area of the production process would not be seen and that it was better to keep it open so that fires could be “clearly seen”. He had no answer as to why the First Defendants were continually being chased to meet the HSE requirements.

As a result of the First Defendants’ continuing inaction, on 4^th December 1998, the HSE served 4 Improvement Notices. One of these was for the “provision of fire separation in the process and intermediate storage areas …” The letter complained that “progress in addressing the serious fire risks in the factory has been slow, having regard to the potential for harm.” Mr Edge accepted that the First Defendants had been slow but denied that they had been reluctant. He said he disputed the HSE view that Unit D represented a serious fire risk but he did not write to the HSE to make his disagreement known at the time.

On 24^th February 1999 the First Defendants wrote to the HSE informing them that they had carried out some improvements but they had not complied fully with 3 of the 4 Notices. On the question of fire separation in the process and intermediate storage areas, the First Defendants said:

“We have failed to meet the compliance date for this notice, due mainly to a lack of, and difficulty in, obtaining any reliable and relevant information in this area. I have previously contacted several consultants, our own builders and contents insurers, as well as the West Yorkshire Fire Service, only to receive, what was often quite wildly conflicting advice.”

The letter sought further time to comply with the Improvement Notices. No copies of, or details concerning, the allegedly “wildly conflicting advice” were provided.

On 13^th April 1999, the First Defendants provided to HM Inspector of Factories a written risk assessment produced on their behalf by Derek Burke, dated 11 March 1999 and referred to in paragraph 68 above. This recommended that, before undertaking the fire separation work required by the HSE in the upper production areas, in order to separate the polystyrene blocks from the process machinery, a “monitoring programme is implemented to measure for pentane gas to determine if a problem exists or not”. The report also recommended that:

“Interlocks should be provided on the hot wire conveyors to ensure that if the conveyor ceases to move its efficient speed, stop or jam, then the power supply to the hot wires will be cut off.”

Mr Michael Edge in cross-examination accepted that this was a clear warning that the pentane was a fire hazard. He maintained that he did not want to divide up the upper floor. There was no evidence that any pentane monitoring programme was ever put into effect. Whether or not there was an interlock of any sort on the hot wire cutting machine where the fire started is dealt with in greater detail in paragraph 112 below.

On 14^th May, the HSE wrote to the First Defendants to say they did not agree with all of the conclusions in the Risk Assessment and still required action to be taken as required by the Notices. Mr Kay, the HSE inspector who gave evidence at the trial, said that the Assessment “was not what we hoped for”. His letter stated:

“We also require that steps be taken to reduce the risk of spread of fire in the production areas by provision of a half hour fire resistance separation as explained in our original letter of 9 March 1998, or equivalent fire safety measures.

It is my opinion that you have not complied with the conditions of the remaining 3 Notices but since you have clearly taken some action towards complying and have notified HSE of your reasons I do not propose to take any enforcement action at this stage.”

Mr Kay also explained that the HSE always believed that the storage area should be separated, and that that was the “right way forward”. However he pointed out that any enforcement proceedings would not be straight-forward because it was a “grey area”; any action would be a “test case for court”. He said that if the problem could be dealt with in another way, “we would not push it”.

On 27^th August the HSE wrote again to the First Defendants to say that they expected the remaining matters “to be resolved without further delay”. As to the thorny issue of fire separation in the upper floor, the HSE were obviously aware that the First Defendants were positively opposed to such measures. Accordingly they said:

“Since you do not wish to go down the route of providing additional fire separation in the upper production area you should consider whether the existing fire detection system could be improved.”

This, of course, was an extremely important development, because it indicated that the HSE would not “push” the separation solution if the problem was dealt with in another way, such as the installation of an automatic fire detection system in the upper floor area. Mr Kay confirmed this in his evidence. Accordingly Mr Michael Edge was asked in cross-examination what steps the First Defendants had taken to consider improvements to the existing fire detection system, and in particular whether they had thought about putting in an automatic smoke or fire detection system in the upper floor. Mr Edge’s answer was best described as cagey. He said he thought that the First Defendants had considered the point but could not really be specific whether they had done or not and, if so, why no automatic system was installed.

On 1^st September 1999, the First Defendants replied to the letter saying that they would “consider” the possibility of fitting further smoke detectors above the block ageing area and some form of roof mounted ventilation. The letter also dealt with the HSE’s point that the hot wire cutting machines should operate so that “the current to the work is interlocked to the block movement”. The HSE were asking for the power to the wires to be cut if the block on the machine jammed, which was essentially what the risk assessment produced by the First Defendants themselves had recommended. In those circumstances, the First Defendants’ response was surprising:

“None of the machinery is automatic; at very best some could be said to be semi-automatic. It was decided to operate the machinery this way because automated cutting machinery was seen to encourage operatives to “wander” away from the machinery, but running them as we have seems to encourage the vigilance of the machine operatives. We do however recognise the obvious benefits of your suggestions and are looking into the feasibility of fitting such devices to some of our machinery.”

Mr Edge in cross-examination put the gloss on this response that, since the machinery was coming to the end of its life and the First Defendants intended to buy new machinery, it was not worth putting interlocks on old machinery. When pushed on the curious stance that it was better not to have automatic interlocks at all, because then the operative did not wander away from the machine, Mr Edge eventually said that this was a matter for Mr Higgins to explain, because he had written the letter of 1^st September. Mr Higgins did not explain it in his evidence. As set out in greater detail below, I regard the First Defendants’ repeated emphasis on the need for operator vigilance, as opposed to automatic detection systems, as being indicative of their stance in respect of fire protection generally.

On 23^rd August 2000 the West Yorkshire Fire Authority wrote to Mr Goodsell of the First Defendants following an inspection. The Authority stated that the First Defendants had “failed to comply with the requirements imposed on you by the workplace fire precautions legislation”. Three matters were identified concerned with signage, self-closing doors and the like. The letter required the First Defendants to carry out a written risk assessment of Unit D because none had been done for a number of years. Mr Michael Edge said that he disagreed with that, although again there was no written response by the First Defendants to this letter making that, or any other point. Neither were there any written risk assessments from the First Defendants on the files of either the Fire Authority or the HSE, other than the one referred to at paragraph 68 above. Accordingly, although Mr Edge, and Mr Goodsell, suggested in their evidence that fire assessments had been carried out, there was absolutely no evidence to support that contention. I accept, of course, that many of the First Defendants’ documents were destroyed in the fire itself, but, given that the whole tranche of documents to which I have been referring comes, not from them, but from the files of the Fire Authority and the HSE in any event, it would appear that, even if the First Defendants did produce any written fire risk assessments (which, on the evidence, I do not accept), they did not send them to either the HSE or the Fire Authority. Accordingly, at the time of the fire, neither the HSE nor the Fire Authority were aware of the up to date position, by way of written fire risk assessments, at Unit D.

This might ordinarily be of little account but, in this case, the First Defendants are seeking to defend themselves against the negligence/nuisance allegations by saying, amongst other things, that they did everything that they were required to do by the relevant statutory authorities. That is a difficult argument for the First Defendants to run if, as is plainly the case here, those statutory authorities were not aware of the updated position at Unit D because the First Defendants simply had not provided them with any further information. It is plain beyond doubt that no written risk assessments were provided by the First Defendants to the relevant statutory authorities (aside from the report referred to at paragraph 68 above) and that therefore the authorities were not aware of the ongoing position at Unit D at the time of the fire. As Mr Kay put it during his cross-examination, “the information at the date of the fire did not go beyond the information available on 23^rd August 2000.” As an example of the potential consequences of this default, it is worth considering the need for an interlock on the cutting machine which would cut the power to the wires if the conveyor jammed, a recommendation made in the First Defendants’ sole risk assessment document of April 1999. Given the absence of any information from the First Defendants thereafter, the Fire Authority and/or the HSE might have been forgiven for thinking that this, at least, had been done, since it was being recommended by the First Defendants’ own consultant. As we shall see at paragraph 112 below, I find that it was not done, and the Fire Authority and the HSE were never informed.

The Fire Prevention System in place in August 2003

On the basis of the material set out in paragraphs 77-94 above, I find that the fire prevention system in place at the time of the fire in August 2003 was essentially as set out on the plan that went with the Fire Certificate.

Accordingly, in respect of the lower floor, there were heat/smoke detectors in and around the area of the offices. There was fire protection for the storage tanks. In general terms, in this area, the First Defendants complied with the requirements/recommendations of the HSE and the Fire Authority.

In the upper production area there were no heat/smoke detectors. In other words, there was no automatic fire detection system. There were also no fire-resisting barriers or other separation between the large storage area for the completed blocks and the process machinery, including the hot wire cutting machine. There were, however, a large number of fire extinguishers situated close to the machines.

I find, on the evidence, and in particular on the basis of the documents held by the statutory authorities, that the First Defendants’ attitude to fire and fire prevention was to carry out the absolute minimum work necessary to ensure that the authorities did not issue enforcement proceedings, but to do no more than that. They were not proactive in respect of sharing information about or endeavouring to reduce possible fire risks. Overriding everything else was an apparently unshakeable belief on the part of the First Defendants that the most important element of fire-fighting was the human element; in consequence, fire-resisting barriers were regarded as a bad idea because they prevented workers from seeing down the upper floor area to where the fires might start; and the possibility of interlocking devices on cutting machines was also rejected because they encouraged workers not to be vigilant.

Accordingly, at the time of the fire in August 2003, in the upper floor area, there was no fire protection from fire-resisting barriers between storage areas and production areas, and neither was there an automatic fire detection system. Indeed, there was no heat or smoke detection system in the upper floor at all. On any fair reading of the correspondence set out in paragraphs 77-94 above, I consider that it is plain that the Fire Authority/HSE wanted one or the other, but in the event, they got neither.

In my judgment, by ignoring the technical literature and the recommendations of the HSE in respect of fire resisting partitions, and in failing to do anything about the alternative suggested by the HSE, namely the installation of an automatic heat/smoke detection system in the upper area, the First Defendants took an unwarranted risk. They operated on the basis that everything would be alright because their employees would deal promptly with any fire that might occur. It is not unfair to categorise the First Defendants’ fire prevention system at Unit D as being one which was wholly dependant upon their employees; they left it to those working on the upper floor to spot the fire and then to raise the alarm and to try and deal with it before it got out of control. In all those circumstances, it was therefore even more critical than usual that the First Defendants ensured that all their employees had a complete understanding of what they had to do in the event of a fire. For the reasons set out at paragraphs 121-129 below, I find that they failed to do so.

The Lay-Out At The Time Of The Fire

By 8 pm on the evening of 6 August 2003, many of First Defendants’ more senior employees had left the Unit D premises, either because they were part of the management team and stopped work at about 5.30pm or because they were not working on the 2pm-10pm shift. Mr Michael Edge was not there and neither were any of the relevant department heads, Messrs. Goodsell (Quality Control and purchasing), Higgins (package moulding) and Mallison (cutting). It is not at all clear who was the most senior person on the upper floor at the time of the fire.

By 8pm, on the upper floor, Mr Sayeed Abbas was working the hot wire cutting machine, cutting failed and/or defective blocks into scrap. This was not his usual department or place of work, although he had worked there before. The hot wire cutter was situated towards the eastern end of the upper floor of Unit D. It was close to a chute down which the cut-up scraps were sent to the granulator on the lower floor. At the other (western) end of the upper floor, four Polish workers were operating the two block moulding machines. It seems that the man responsible for them was Mr Chris Godwin. Neither he, nor any of the other Polish workers, was called to give evidence at the trial.

It is common ground that there were stores of EPS close to the moulding machines. In addition, between the two block moulding machines and the hot wire cutter being operated by Mr Abbas, there was a large area where the moulded blocks were stored. There was general agreement about the size of this area and its precise location. Mr Abbas said that the store of good blocks was about 50 foot long and 50 foot wide, and about 10 foot high. Mr Higgins, now the First Defendants’ operations manager, expressly accepted that, and Mr Goodsell said that, if anything, it was a little bigger than that. Mr Michael Edge said that he believed that the storage area was about 12 foot high.

There was some debate about how many blocks might be within the storage area at any one time. Mr Michael Edge said that the store could hold about 500 blocks, which was about one day’s output. On the evening of 6th August 2003 I find, on the evidence that I heard (which was all speculative because no relevant records escaped the fire) that there were at least 400 blocks in the storage area, and very probably more. That is also consistent with the agreed evidence that the storage area at the time was about 12 foot high and 50 foot square. I also find that this storage area was separated from the hot wire cutting machine by a passage of about 10 foot in width to allow for a fork lift truck to pass between the stacks of blocks and the hot wire cutter.

In a separate, smaller stack, to the north of the larger storage area, and just to the west of the hot wire cutting machine, were the blocks which had been rejected and which were to be cut up and recycled. It was clear on the evidence of Mr Goodsell that there were two sorts of defective blocks that might be put in that stack: those which had failed the Quality Control procedures (because, for instance, they had not attained the required density specification); and those which had been rejected because of a visual inspection after the blocks had come out of the moulding machine.

There was a debate about how many blocks were in this stack at the time of the fire. Mr Higgins originally said 40, but later changed that to 20. Mr Goodsell also said 20. I have concluded on all the evidence that there must have been more than 20 blocks in the reject store, and that there were probably between 30 and 40. Otherwise, on the agreed evidence that it took 2.5 minutes to cut up a block on the hot wire cutter, Mr Abbas would have quickly run out of work on the night shift. However, I consider that Mr Abbas was wrong to say that this area was as large as 45 foot by 15 foot on the night of the fire. Mr Goodsell’s evidence was that the reject area was about 8 foot by 10 foot, and Mr Michael Edge said that he thought it was 8 foot by 12 foot. I find it was probably bigger than that, but perhaps not by much, and that it was not as big as indicated by Mr Abbas. It was agreed that, again, this reject stack was about 10 or 12 foot high. It was also agreed that there was an alleyway, at least wide enough for a fork lift truck, between the reject storage area and the hot wire cutting machine.

In my judgment, the precise size of the two storage areas matters less than the undisputed fact that, at the heart of the First Defendants’ manufacturing area, there were large amounts of recently-moulded blocks that were not compartmentalised and which were close to machines, like the hot wire cutting machine, that were potential sources of ignition. That, of course, was contrary to the technical literature (Section F above) and the point that the HSE and the Fire Authority had been so concerned about for so long (Section G above). As Mr Goodsell memorably summarised it in his evidence, “the upper floor areas were cramped and full of blocks.”

The Hot Wire Cutting Machine

The hot wire cutting machine was the seat of the fire. It consisted of a conveyor about 15 feet long. In the middle, on either side of the conveyor, were two vertical members. Between the two vertical members were strung a number of wires, 2.8 metres in length, which were capable of being heated by electric current to a temperature of at least 200^oC. The blocks were put longways onto the conveyor (i.e. with the long side facing the wires) and, as they passed through the hot wires, they were cut into horizontal layers or slices. It appears that there were seven wires on the machine on the night of the fire. As previously noted, the principal purpose of the machine was to cut up defective blocks, so that the EPS could be recycled.

There was considerable debate about the number and type of controls on the machine. However it appeared to be common ground that there was an on/off switch, an emergency stop, an ordinary stop button and a start button. There was also a dial for controlling the speed of the conveyor.

There was a dispute about whether there was an additional dial for controlling the heat of the wires. It was the Claimants’ case that there was such a dial. It was the First Defendants’ case, at the outset of the trial, that there was no such dial at all; later, that stance was modified, and they instead alleged that, although there was a temperature control, it was locked away, and the only way for an operator to change the heat in the wires was to go inside the locked control box on the side of the machine.

On the evidence, I have reached the firm conclusion that there was a dial on the control panel which allowed the operator to control the heat of the wires. That was the clear evidence of Mr Sayeed Abbas, a witness ultimately called by the First Defendants who was, of course, operating the machine on the night of the fire. That was also the unequivocal evidence of Mr Sutcliffe, the man who had used the machine before Mr Abbas on the night of the fire and probably knew it better than anyone else. In addition, Ms Footit, another of the First Defendants’ employees who had used the machine and gave evidence before me, also said in terms that the machine had such a control.

The other dispute about the hot wire cutter was the existence of any interlock systems which would cut power if there was a problem. It was common ground that there was no automatic interlock that stopped the hot wire cutter if one of the wires broke. But in addition, the Claimants maintained that there was also no interlock that would have automatically stopped the machine if the conveyor jammed. The First Defendants submitted that there was such an interlock. Other than Mr Michael Edge’s assertion that there was an interlock which fulfilled this function, there was no other evidence to support the First Defendants’ position. Certainly, neither Mr Higgins nor Ms Footit could say that there was such an interlock, and it could not be pointed out on the wiring diagrams of the machine that were available in Court. On the other hand, Mr Howe, the Claimants’ polystyrene processing expert, who I find to be a very meticulous witness, explained in some detail how and why there can have been no such interlock on the hot wire cutter where the fire started. Further, I am bound to note that the absence of an interlock was entirely consistent with the First Defendants’ written stance that they did not want to introduce interlocks because they reduced the vigilance of the employees: see paragraph 92 above. More significantly still, the German manufacturers of the machine, Pantel and Bromser, in answer to written questions from Mr Howe, said in terms that the hot wire cutter had no interlock that stopped the machine if the conveyor jammed (see the email exchanges between 7.3.05 and 17.3.05). Accordingly, on all the evidence, I am bound to conclude that the hot wire cutter did not have an interlock of any sort. Accordingly, the First Defendants failed to comply with one of the key recommendations of their own risk assessment document (see paragraph 89 above).

Earlier Fires On Cutting Machines

I consider it of some importance that, on the evidence before me, the fire that started on the hot wire cutting machine on 6^th August 2003 cannot be regarded as an unusual event at Unit D. I have already noted that, in the HSE report of 9 March 1998, there was an undisputed reference to fires occurring “at one of the early cutting stations, just after the polystyrene had been formed into blocks”. In addition, there was other evidence that there had been an ongoing problem with small-scale fires at Unit D prior to the fire in August 2003. I identify some of that evidence below.

On 7^th August 2003, the First Defendants’ insurers appointed Mr Hotchkiss as a forensic fire expert to investigate the cause of the fire. He immediately interviewed a large number of the First Defendants’ employees, including Mr Mallison, who was the First Defendants’ Cutting Manager. Mr Hotchkiss’ notes of that interview were broadly accepted as accurate by Mr Mallison in his cross-examination, although he endeavoured to say at one point that he was mainly talking about old-fashioned cutting machines, and not the machine where the fire started. I reject that qualification; after the fire, Mr Hotchkiss would not have been interested in machines other than the actual machine where the fire had apparently started. This is confirmed by the notes themselves, which expressly referred, amongst other things, to a fire only the week before:

“If wire snaps - ? stop and pull out. Otherwise – wire can sag and contact other wires below – if two wires are bridged wire ends glow and wires break.

If block snags – wires overheat. Wires snap or ? Hasn’t seen fire because of this cause but wires glow.

Mr Hotchkiss also recorded Mr Michael Edge, again after the fire in August 2003, talking about “occasional incidents where ignition of block [on a hot wire cutting machine] has occurred”. More significantly still, Mr Hotchkiss recorded Mr Sutcliffe as saying that “if wire snaps-can sometimes cause a fire”. Mr Sutcliffe’s witness statement in these proceedings, at paragraphs 30-33, expanded on this considerably, and his evidence on this important topic was not significantly challenged. Mr Sutcliffe said that there were a lot of small fires on the hot wire cutting machines, including “fires on the very machine that Mr Abbas was using”.

The fact of a small fire on Thursday 31^st July, 6 days before the fire with which this action is concerned, was confirmed, not only by Mr Mallison in conversation with Mr Hotchkiss (paragraph 114 above), but also by the invoices from Pegasus Fire Protection. Copies of these documents, which were sent to the First Defendants but which, like many of the documents in the bundles, were obtained by the Claimants, showed a number of occasions when fire extinguishers at Unit D had been refilled. There was a call-out visit by Pegasus on the 31^st July to refill 3 extinguishers and supply and fit pins and tags and one horn. That was entirely consistent with the fire that Mr Mallison had mentioned to Mr Hotchkiss. It was, I am afraid, not untypical of the First Defendants’ overall stance that, despite this, Mr Higgins was prepared to say, on oath, that the invoice definitely did not show that a fire had occurred on that date. For the avoidance of doubt, I find, on the evidence of Mr Mallison, both at the trial and as recorded by the First Defendants’ insurer’s fire expert; the evidence of Mr Sutcliffe; and the Pegasus call-out record for the very day identified by Mr Mallison, that there had been a fire at Unit D, on a hot wire cutting machine, less than a week before the catastrophic fire with which I am primarily concerned.

Mr Higgins denied that this fire, or any other fires, had been reported to him, although, to the extent that it could be said that the First Defendants had any sort of reporting system, he was the person to whom fires should have been reported. Thus it seems clear that incidents occurred which plainly should have been reported to Mr Higgins, but which, on his evidence, were not. That was, in my view, a significant failure in the First Defendants’ overall safety system, and a graphic illustration of the prevailing culture at the First Defendants, where everyone appeared to treat fires as simply an inevitable fact of manufacturing life, and they therefore failed to take proper steps to prevent fires from re-occurring.

I am satisfied, for all the reasons set out above, that small fires were, and were accepted as being, a consistent and inevitable feature of the First Defendants’ manufacturing processes at Unit D. This therefore confirms the fact that, long before the fire in August 2003, both the HSE and the Fire Authority had been right to be concerned about the fire hazards inherent in the polystyrene manufacturing business of the First Defendants.

It was Mr Sayeed Abbas who was operating the hot wire cutting machine at the time of the fire on the 6^th August 2003. Accordingly, before coming on to his evidence as to the circumstances of the fire, it is necessary to consider his employment background and training with the First Defendants.

Mr Abbas started work with the First Defendants in April 2003, about three and a half/four months before the fire. For most of that period he was employed on the lower floor of their factory in the packaging department. As part of his duties in that department he operated a hot wire cutting machine to cut up boxes. He did not operate that machine more than two or three times a week. In cross-examination, he said that he had had no real training on the hot wire cutter in the basement but that a man called Robert had shown him how to operate the machine.

As to the general levels of training and safety instruction which Mr Abbas received, the evidence was confused. In his original signed statement, prepared on behalf of the Claimants, Mr Abbas said:

“21.

I have been asked whether I was given any training in fire safety when I joined SPI Limited. I can say that fire safety was never mentioned to me and I was certainly given no training. Nobody told me anything about what I should do in the event of a fire and nobody showed me the location of any of the fire extinguishers in the premises, or where the fire alarm points were located.

22.

I was not told that there was any fire risk on the job that I had been given on the hot wire cutting machine. Nobody told me that the machine could catch fire if a wire broke and nobody mentioned any fires having occurred in the past on these machines….I have never been trained how to use fire extinguishers, or what the different types are used for.”

However in his most recent statement, prepared on behalf of the Defendants, and dated 15.6.05, Mr Abbas stated that he wished to change paragraph 22 and that paragraph 21 was incorrect. However, the statement did not make clear what the changes were that he wished to make to paragraph 22 or what the errors were in paragraph 21. I find that it is much more likely than not that Mr Abbas’ first statement, that he was given no relevant instruction/training, was correct and that his later statement was untrue. My detailed reasons for this conclusion are set out, in the context of Mr Abbas’ radical change of story concerning the start of the fire, at paragraphs 147-169 below.

Further, when he was cross-examined on this topic, Mr Abbas accepted that certainly Mr Higgins, the Manager of Mr Abbas’ department, did not give him any training in fire precautions or the operation of fire extinguishers, and provided no induction at all into fire safety and fire prevention. He also confirmed that there were no fire drills. Although he said that another man, identified as Mr Zahir Bashir, showed him a fire extinguisher and how it worked, and the locations of some of the extinguishers and fire exits, I reject that oral evidence and prefer Mr Abbas’ original evidence set out at paragraph 121 above. But, even if I was wrong about that, and Mr Abbas’ oral evidence is to be accepted, his description of the rudimentary instruction from Mr Bashir made it clear that the fire precautions training that he received was completely inadequate.

When Mr Higgins gave evidence, he disagreed with Mr Abbas, saying that he had inducted Mr Abbas in fire safety/fire prevention procedure. He said that this one-off session had been in English and that Mr Abbas’ command of the English language was “fairly good”. He therefore maintained that Mr Abbas was wrong to say that he had not given Mr Abbas any fire instruction. I reject Mr Higgins’ evidence on this point. I think it much more likely that Mr Abbas’ recollection is correct: he will recall what happened to him much better than Mr Higgins, who was responsible for so many other employees in 2003 and thereafter.

In addition, I must note that Mr Abbas gave evidence throughout by way of an interpreter. It was clear to me that his command of English was rudimentary, which was why, for instance, his interviews with Mr McKeating and Mr Hotchkiss took place in the presence of his wife, who spoke better English and could translate where necessary. Accordingly, if (which I do not accept) Mr Higgins did give Mr Abbas any sort of induction, it is unsurprising that Mr Abbas could not recall it, since the induction would have been in English and would not have been understood by Mr Abbas. In my judgment, therefore, if Mr Higgins is right, it again demonstrates the slap-dash nature of the First Defendants’ approach to training and fire precautions. For all these reasons, I am satisfied that the general level of training and instruction in fire safety given to Mr Abbas was either non-existent or, at best, patently inadequate, particularly given the obvious language difficulties which meant that Mr Abbas required particular instruction in order to ensure that he understood what the fire precautions were. Contrary to the HSE Guide (paragraph 73 above), he was given no written procedure or instructions which told him, in his own language, what he should do in event of fire.

The inadequate nature of the fire training given to Mr Abbas was borne out by the evidence of another employee of the First Defendants, Mr John Sutcliffe who said, at paragraph 34 of his statement:

“I cannot remember ever having a fire drill. That is not to say there definitely never was one, but I would have thought that I would have remembered if there had been regular fire drills. I knew how to use a fire extinguisher, but I cannot remember who it was who showed me how to use one.”

On this point I should also note that, at paragraph 10.3 of his report, Mr Howe sets out the reasons why he considered that the training given to Mr Abbas in respect of fire extinguishers was inadequate. His criticisms mirror the points that I have set out above. Therefore, on the basis of the factual evidence that I heard, I accept Mr Howe’s criticisms of the First Defendants’ training regime.

On the 28th July 2003, Mr Abbas first worked on the hot-wire cutter on the upper floor that was the seat of the fire. This date was identified in paragraph 3 of Mr Abbas’ original statement, which his most recent statement confirmed to be correct. It was also noted by Mr Hotchkiss during his interview with Mr Abbas on the 7 August 2003, the day after the fire. Accordingly, as Mr Hotchkiss noted, Mr Abbas had worked (intermittently) on the hot-wire cutter for just one and half weeks before the fire.

It is clear from the evidence that Mr Abbas was not given any real training on this hot-wire cutting machine either. At paragraph 5 of his original statement, which was confirmed to be accurate by his most recent statement, he said:

“5.

I recall that the person who showed me how to do the job was called Andy. It took him approximately 10-15 minutes to show me what to do and after that I was left to continue working alone. The hot wire cutting machine had controls to adjust the speed of the conveyor and the temperature of the wire. However, I never touched these controls, which were set by the workers who had used the machine before me.”

During the ten days between the 28th July and the date of the fire, Mr Abbas used the hot wire cutting machine from time to time. In his evidence he described putting the blocks longways on the conveyor and pressing the start button. He said that the wires then got very hot and the block would then move along the conveyor and be cut by the hot wires into strips. Once the block had gone through the wires, he would stop the machine by pushing the red button and then put the cut-up bits into the granulator. He also said that when the block that was being cut was about half way through the wires he would put another block on the conveyor behind it.

On Tuesday the 5th August, the day before the fire, Mr Abbas said that he experienced problems with the machine. Specifically, two of the wires on the hot wire cutting machine broke and he did not know what to do. He said in evidence that, as a result, somebody came to give him training as to what to do when the wires broke. This person was Mr Sutcliffe, who spoke to Mr Abbas about the broken wires that day. Mr Sutcliffe’s evidence to me was that he was upset about this incident, and what he plainly regarded as Mr Abbas’ mishandling of the machine. At paragraphs 41-42 of his statement Mr Sutcliffe said:

“41…I had made a complaint the day before the fire to my line manager about Mr Abbas. He had left the machine with the wire snapped and it had taken me about an hour to set it up again at the beginning of my shift.

42.

So when I saw Mr Abbas on the afternoon of the fire, I showed him how to use the machine again and how to fix the wires onto the machine, if they snapped.”

Accordingly, on the afternoon of the fire, Mr Sutcliffe had showed Mr Abbas how to fix the wires if one or more of them should break. Then, accordingly to Mr Sutcliffe, the hot wire cutting machine was left for Mr Abbas with all the wires intact, with a temperature setting of 50, and with the conveyor speed set at 4. Mr Sutcliffe then left the factory, and Mr Abbas took over the machine. Mr Abbas said that he was told not to touch the temperature and speed controls, and he plainly would not have known what to do with them in any event, since he had not been trained in their use. As noted above, it appears that there were not very many employees working at Unit D on this particular shift; on the upper floor, there was just Mr Abbas towards the eastern end of the upper floor, and the four Polish workers, in the charge of Mr Chris Godwin, at the western end. I am in no doubt that Mr Abbas, untrained and working in a different department and on a new machine as he was, should never have been left to operate the hot wire cutter unsupervised.

As I have previously noted, on the face of the pleadings, there is no debate that the fire commenced on the hot wire cutting machine that was being operated by Mr Abbas. I find that, in any event, the evidence admits of no other conclusion. Further, although there were some small differences as to timings and the spread of the fire, there was no significant debate about the action taken by the Fire Brigade once they had been notified of the fire. Essentially, the real dispute between the parties concerned the circumstances in which the fire started and the cause of that fire. Accordingly, it is appropriate to set out below some of the relevant timings and the evidence as to the fire-fighting efforts, before going on to consider in greater detail the evidence as to the commencement and cause of the fire.

On the evidence before me, it would appear that the fire started at about 8.20pm on the evening of the 6th August. This is consistent with the first call to the Fire Brigade that was logged on the Fire Brigade Computer at 8.25pm. The Computer recorded that the first Fire Engines arrived on the scene at 8.29pm.

This sequence is also consistent with the evidence of Mr Mends, a Director of the First Claimants. Mr Mends told me that, in Unit B, they were working their second shift and there was a meal break between 8.00 and 8.30pm. During that meal break, the smoke alarms in Unit B went off. As a result of those automatic detectors, the Claimants realised that there was a fire and were able to evacuate their premises. I am therefore bound to comment that the Claimants became aware of the fire, not because of any automatic detection system at Unit D, where the fire started, but because of the automatic detection system which the Claimants themselves had installed in their own premises.

As I have said, all of the evidence before me was consistent with the timings set out above. It is, however, right to note that, in the records of the Fire Brigade, there was a reference to a nearby resident, Mr Sykes, who thought that he had seen fire at the gable end at about 8.00pm. The fire officers explained how this evidence was completely inconsistent with all the rest of the evidence as to the timings of the fire. On behalf of the First Defendants, Mr McGee put to a number of witnesses the possibility that the fire was already raging at 8.00pm in accordance with Mr Sykes’ observations. Each of the witnesses to which this suggestion was put dismissed it as being completely inconsistent with all the rest of the evidence. It seems to me that, for precisely the same reason, I should also dismiss the suggestion that the fire was already raging by 8.00pm. As I have said, no witness before me made any such suggestion.

Sub-Officer Greenup was on detachment at Odsal Fire Station, Bradford, when the alarm call was received. Although he was unfamiliar with the area, the location of the fire was apparent as soon as they left the Fire Station because of what he described as “the large pall of black smoke … rising into the sky from the incident.” He arrived at the scene at 8.29pm. On arrival he could see at once that Unit D was effectively lost. He decided that the fire was so serious that the incident should be made a “fourth alarm” incident increasing the attendance of the Fire Brigade to 11 pumping engines. This decision, taken at 8.32 pm, was made because, as Mr Greenup said, “it was very clear to me that we were dealing with a large fire.” He also said:

“I should mention that because of the extent of the fire there was simply no prospect of sending crews into the burning building to fight the fire at close quarters. As indicated, my strategy was to prevent spread into the premises to the north. It would then be possible to consider the best way to extinguish the fire in the southern part of the building as resources became available.”

As a result of the fire being give “fourth alarm” status, Senior Divisional Officer Martyn Redfern was alerted and arrived at the site to take charge of the incident just after 9.00pm. Also in attendance during this period were Assistant Divisional Officer Brian McKeating and Temporary Assistant Divisional Officer Melvyn Holmes.

In his statement, Mr Redfern gave greater detail of what was involved in the designation of the fire as a “fourth alarm”. He said:

“This requires the attendance of 11 pumping appliances together with ancillary units. These included a rapid deployment safety crew, a major salvage unit, an incident support unit, a hose layer and a command unit. Certain of these ancillary units were also accompanied by further support pumping appliances.”

Mr Redfern estimated that about half of the planned fourth alarm attendance had arrived at the fire ground just after 9 o clock. In addition to the jets, an aerial appliance was set up on the eastern elevation and a second arial appliance was set up to cover the south western portion of the premises. At this point the fire was very intense. Mr Holmes said that the whole building was involved and that the roof had collapsed over unit D, with the ground (upper) floor burning “from end to end”.

Just before 10.00pm, command of the incident was taken over by the Brigade’s Chief Fire Officer, and Mr Redfern continued as Operations Commander. By about 10.30pm, according to Mr Redfern, “it was apparent that the fire fighting activities in Section 3 were successfully knocking down the fire in SPI’s ground floor premises.” Mr Redfern went on:

“At this stage I strongly suspected that the fire at the eastern end of the ground floor was being sustained by burning in stock situated in the basement of the premises. A covering jet was set up and the sliding door into the basement was pulled off using a forklift truck and chains. All that came out was quantities of black smoke. There was no sign of flames.”

A little later, Mr Redfern said that there now were flames coming from a fire in the polystyrene stored in the basement area and that “the venting of the fire in the basement onto the level above was making it difficult to extinguish the fire on the ground floor.”

Mr Redfern concluded:

“Once the existence of severe fire on the ground floor was discovered, it was apparent that we were not going to be able to quickly extinguish the fire in the premises. Accordingly the decision was taken to stand down a number of the crews and to wait until the fire subsided before attempting final extinguishment.”

The Chief Fire Officer left the site just past midnight and Mr Redfern again assumed overall command. He left the scene about 45 minutes later. It appears that, by morning, the worst of the fire was out, although it continued to burn for several days.

During his cross-examination of the Fire Officers, Mr McGee, on behalf of the First Defendants, suggested to them that there was a particular problem as a result of the gas main round the Unit D premises. I am bound to say that it was never entirely clear during this cross-examination what the particular problem was or what relevance it had to the case. But in any event, all of the witnesses dismissed the point out of hand and rejected any notion that the location or existence of the gas main was anything other than a standard feature of premises such as this. Mr McKeating said in terms that it was irrelevant to the cause of the fire. Mr Redfern explained that “it took a little while for the gas to be shut off but that that was one of the many things that happen in the middle of a fire.” Accordingly, to the extent that the First Defendants relied on the existence of the gas main as being of any relevance to the cause or the spread of the fire, I expressly reject that suggestion. I therefore turn to the principal matter between the parties concerning the fire, namely the circumstances in which it started and the cause of the fire itself.

There are three sources of evidence as to the circumstances and cause of the fire. They are:

I should say that, for obvious reasons, I place particular emphasis on the material addressed in Section I 3 below, namely the contemporaneous records made by Mr Hotchkiss, the Fire Investigator appointed by the First Defendants’ insurers, and the evidence obtained by the officers of the Fire Authority. This information was provided to professional men with no personal interest in the outcome of any dispute as to the cause of the fire. More importantly still, this information was provided by those most closely involved in the fire immediately after the fire had occurred. Inevitably therefore, such evidence must remain by far the most reliable evidence as to the circumstances, and therefore cause, of the fire.

On the 7 August 2003, the day after the fire, Mr Abbas was interviewed at his home by Mr McKeating and Mr Holmes of the West Yorkshire Fire Service. The notes, which Mr Abbas signed, read as follows:

“At approx 20.30 I was operating a cutting machine on the first floor. There are seven cutting wires operating at high temperature. A block was half way through being cut when it caught fire. I ran to the floor below to get a fire extinguisher. When I returned four others were using extinguishers to tackle the fire. It became very hot and smoky so we all left the premises. …”

Mr McKeating said that, when giving a more detailed explanation as to the precise moment when something went wrong, Mr Abbas told him that, when the block was half way through being cut, he heard a noise. Mr McKeating said:

“Mr Abbas described the noise as a sort of hissing sound, he used the word “toast” to describe it. He said that the sound was caused by one of the cutting wires snapping. He appeared to be familiar with that noise, and I understood from what he said that it was common knowledge that this sound resulted when one of the wires breaks.”

In his evidence in chief, Mr McKeating confirmed that Mr Abbas had first used the word “toast” to describe the noise made at this interview on the 7^th August, and that, because Mr Abbas’ English was not very good, Mr McKeating clarified it with Mr Abbas’ wife. She confirmed that that was the sound of “the wire going”. In cross-examination Mr McKeating said firmly that the word was not used for the first time by Mrs Abbas but had been used by Mr Abbas to describe the noise of the wire breaking. In this evidence, Mr McKeating was supported by the evidence of Mr Holmes who gave exactly the same account. Mr Holmes confirmed that Mr Abbas did not appear uncertain about his account of the fire, but was instead confident that what he said was an accurate explanation of the circumstances of the fire.

On the same day, the 7th August, Mr Abbas was also interviewed by Mr Hotchkiss. Mr Hotchkiss’ notes record Mr Abbas as saying as follows:

“8.30.

Two blocks.

First ok.

Second block – half way through, heard a hiss…saw smoke and fire, lot of black smoke. Frightened. Didn’t switch machine off as so much smoke being produced. Didn’t want to go near machine. Next I get fire ext – went down stairs because didn’t know where extinguishers were upstairs – couldn’t find door because lights off. Went back up. Other workers trying to put fire out with extinguishers.”

This entirely separate record of Mr Abbas’ description of the fire, also provided on the 7th August was, of course, entirely consistent with the account that he had given to Messrs McKeating and Holmes. So too was the further account he gave 6 days later, on the 13th August 2003, again to Mr Hotchkiss. In Mr Hotchkiss’ notes of that interview, Mr Abbas was recorded as saying:

“Standing where blocks loaded when heard “toast” sound. Then 5-10 seconds. Smoke came then. Flames in area of frame but not sure exactly where from.

Not told could be a fire if wire broken. Not told to do if wire broke other than to turn machine off remove broken wire and fit replacement.”

The two sets of notes prepared by Mr Hotchkiss were then put into a statement for Mr Abbas to sign. It was the first signed statement that Mr Abbas ever produced, being dated the 26th August 2003, just 3 weeks after the fire. At paragraph 9 of that statement Mr Abbas said:

“The first block went through the machine without any problem (as had all the blocks that night). When the second block was approximately half way through the hot wires I heard a hissing sound which lasted for approximately one second or so which sounded like the word “toast”. I did not know what the hissing was and at the time I thought it might have been made by one of the moulding machines. Approximately 5-10 seconds later I saw flames and a large quantity of black smoke coming from the block that was part way through the wires. I’m not sure exactly where the flames and smoke were coming from as so much smoke was being produced. I do not remember if there was a fire extinguisher near the machine controls. Although I was only standing a few feet from the controls, I was frightened to approach the machine because of the amount of smoke that was being produced and I did not switch it off but went to find a fire extinguisher. I was not familiar with where the fire extinguishers were kept on the first floor so I ran down to the ground floor where I normally worked. However, when I got to the ground floor I could not find any fire extinguishers because the lights were off. When I came back up to the first floor some of the other workers were already trying to put the fire out with fire extinguishers.”

Accordingly, it seems clear beyond doubt that Mr Abbas gave precisely consistent accounts of the circumstances in which the fire arose to all those who asked him about it in the weeks immediately following the fire.

Others Present

On the 8th August 2003, Mr McKeating interviewed the four employees on the upper floor who were referred to collectively as the Polish workers. They were Andrzej Godwin, Stan Godwin, Dymitri Chomantes and Bogdan Ostrowski. This interview, which Mr McKeating also wrote up, was carried out in the presence of Mr Hotchkiss, who also made a note of what the witnesses said. There was a very close similarity between the notes produced by Mr McKeating and the notes produced by Mr Hotchkiss. I set out briefly below the key elements of the notes prepared by Mr McKeating.

Mr Andrzej Godwin:

“He first noticed the fire when he smelt the smoke. He turned towards the cutting table to see it involved in fire. At this stage it was mainly the polystyrene block on top, and part into, the cutting machine that was on fire. He picked up the portable fire extinguisher near his own work station and ran towards the fire. The fire very quickly spread to a second block on the same table.”

Stan Godwin:

“He smelt smoke and saw the fire…he picked up a portable fire extinguisher and tried to extinguish the fire. As he was fighting the fire he noticed it spread very quickly from the cutting table to the polystyrene stock surrounding the table.”

Bogdan Ostrowski:

“He was moving some blocks of polystyrene when he saw the fire. The fire was in its early stages and was confined to the polystyrene block on top of the machine. The block appeared to be stuck in the machine.

Bogdan fought the fire until the extinguisher was empty but as it was not extinguishing the fire he decided to try to escape.”

Having noted the comments of the various personnel present, Mr McKeating concluded his notes as follows:

“The information received from the above interviews supports the events as described by Sayeed Abbas, the operator of the cutting table when the fire started. At this stage there is no doubt that the fire started within or on the cutting table as a polystyrene block was being cut. It is not clear at this stage as to what actually went wrong with the machine to start the fire. The seven wires fitted to the machine are heated by electricity, which allows them to cut the polystyrene as it passes through the machine. The operator stated he heard one of the wires break. He did not stop the machine immediately, and ran to get an extinguisher when he saw the block was on fire. Further investigation is required to establish the cause of the fire within the machine. It is not yet possible to determine if the broken wire can cause a spark if it comes in contact with other parts of the machine or if sufficient heat can build up to cause a fire when the block becomes stuck.”

Finally, in this review of the contemporaneous records of the circumstances and cause of the fire, it should also be noted that Mr McKeating filled out a Fire Investigation Pro-Forma document which recorded that “witness reported polystyrene block as first ignited"; that “witnesses all report origin of fire as cutting table”; and that “polystyrene – very large quantities” was the “material mainly responsible for fire development.”

Mr Abbas produced two written witness statements in these proceedings on behalf of the Claimants. They were both dated 17^th February 2004 and were prepared by Dr Beeley, the Claimants’ fire investigator. They were entirely consistent with the account of the fire that Mr Abbas had given to Mr Hotchkiss and Mr McKeating in August 2003. It is unnecessary to set them out in any great detail but at paragraphs 15 and 16 there is a description of what happened at the critical moment which was almost exactly the same as the description which, entirely independently, Mr Abbas had given to Mr Hotchkiss. These paragraphs read as follows:

“15.

The first block went through the machine without any problems. About half way through the cutting of the second block I heard a noise. At that time I was standing close to the control panel of the machine near position J. I would describe the noise as a hissing sound. It sounded very much like the word “toast” and lasted for about a second. At the time I did not think the noise meant that anything was wrong with the machine. I’d never heard this noise before and I thought it had been made by some of the other machinery that was in operation nearby.

16.

About ten seconds after I’d heard the “toast” sound I realised there was a problem on the hot wire cutting machine. The smoke was thick and black and there were some small flames. I cannot say exactly where the smoke and flames were coming from. When I saw the smoke I was very concerned. It did not occur to me to switch off the machine at the control panel; all I could think about was finding a fire extinguisher to try to fight the fire.”

About a month before the trial, Mr Abbas informed the Claimants that he wished to withdraw parts of these written statements, including those paragraphs set out in paragraph 160 above, and that important information, that he had freely given to Mr Hotchkiss and Mr McKeating in the immediate aftermath of the fire, was untrue. In particular, he now said that he had not been at the machine when the fire started and that he had turned the machine off and gone down stairs to the toilet, only discovering the fire when he returned.

A new statement was signed by Mr Abbas on the 15th June 2005. This statement was prepared by the First Defendants. The key passage in this new statement was at paragraph 6 which read as follows:

“The area where I was working became messy about 8.00pm. I switched off the hot wire cutting machine using the stop button on the top of the control panel. I then turned another off-switch which was a lever on the side of the panel. The machine was definitely switched off as the lever turned the power off to the machine completely. I then put a single block on the machine which was not touching any wires and cleaned up. I swept the floor and put everything in a bin which was near to the machine. I then decided to go to the toilet in the basement. It was about 8.30pm. I walked across the ground floor to the stairway which lead to the basement canteen. I walked down the stairs and then walked to the toilet block which was in the corner of the basement. I was in the toilet from between five and seven minutes. I then walked back the same way I came. When I was walking up the stairs I heard a strange noise. The fire alarm then went off. When I got to the top of the stairs I saw smoke and flames coming through the open doorway. I could see my machine and I could see flames and smoke around the machine. When I got back to the machine four people were fighting the fire with fire extinguishers. They told me to go and get a fire extinguisher which I did from the top of the stairs next to the canteen where there were three or four fire extinguishers to help fight the fire. The flames were about 3 metres high above the machine but not yet touching the roof. I cannot remember anything burning on the floor or in the bin where I had swept up. The flames quickly hit the roof and we could not control the fire.”

In cross-examination, Mr Abbas maintained that, before he went downstairs, he turned the machine off using the red button and that he also switched the side switch off as well. He said that there was a polystyrene block which was left on the machine, but that it was not touching any of the wires.

In respect of all of the contemporaneous statements and accounts that he had given to Mr Hotchkiss and Mr McKeating, amongst others, Mr Abbas was emphatic. He confirmed that he did give to them the accounts which they had recorded but that, at the time that he gave them, as he put it, “I was lying”. Specifically, he said that his use of the word “toast” to describe the hissing sound was “not true”.

Of course, this new, and radically different, version of events raised an obvious question: why, if what Mr Abbas now said was true, had he lied so repeatedly to Mr Hotchkiss, Mr McKeating and others for the best part of two years? Mr Abbas’ explanation was that he had lied to protect himself ; that he was frightened that he would get into trouble because the fire had started on his machine; and that his previous version was invented to deflect blame away from himself. He was asked in cross-examination why he had made up these accounts. He said:

“At that time I had to go to Pakistan within three weeks. I was very frightened. I was very worried that somebody would blame me. That I would be prevented from going.”

There are three separate reasons why I am quite unable to accept Mr Abbas’ new version of the events surrounding the fire, as set out in paragraph 6 of his latest statement. First, as I have said, I am entirely satisfied that the contemporaneous nature of Mr Abbas’ accounts as set out in Section I 3 a) above, and their complete consistency, one with another, makes them overwhelmingly likely to be true.

Secondly, I am unable to accept Mr Abbas’ explanation as to why he lied so extensively and for so long. After all, his new version of events, that he had turned the machine off and gone to the toilet, was much less likely to get Mr Abbas into trouble than his original, allegedly untrue explanation, which had the fire starting as he worked on the hot wire cutting machine. I asked Mr Abbas to explain why he considered that his original explanation, provided to Mr Hotchkiss, Mr McKeating and others, excused him from potential blame, and what there was in the new version of events that caused him to be so frightened that he had covered it up for two years. Mr Abbas was quite unable to answer those questions. I therefore reject the explanation that he gave as to his reasons for covering up his latest account of the fire. Indeed I am quite satisfied that the position is, in truth, the other way round, and that Mr Abbas was troubled that his earlier (correct) account of the fire might well get him into trouble, whilst his latest (untrue) account, exculpated him completely.

The third reason why I reject Mr Abbas’ latest version of events is because, so it seems to me, it is so far-fetched. Nobody even tried to explain how the fire could have started in or around the hot wire cutting machine if that machine had been turned off. As Dr Beeley said in cross-examination, he rejected Mr Abbas’ explanation because it was simply inconsistent with all of the other information that had been gathered. I agree with Dr Beeley. I do not consider that any alternative argument is even tenable.

In all the circumstances, I wholly reject Mr Abbas’ last-minute attempt to rewrite the story of the start of the fire. I am satisfied that the version of events that he gave to Mr Hotchkiss and Mr McKeating was accurate because it was contemporaneous; because it was repeated on a number of different occasions to a number of different people; because it was consistent with all the other evidence; and because it was palpably not a version of events designed to protect Mr Abbas from potential criticism. Indeed, there was nothing about it which sought to shift the blame away from Mr Abbas, in contrast to the new version which, I find, was expressly designed to exculpate Mr Abbas. For all these reasons, therefore, I accept Mr Abbas’ contemporaneous evidence, as supported by the witness statement prepared by Mr Hotchkiss and the two statements prepared by the Claimants, and I reject the statement made on the 15th June 2005 and referred to at paragraph 162 above.

No other witnesses of fact gave evidence to me as to the circumstances surrounding the fire. Accordingly, the only material available from those witnesses is the set of notes taken by Mr McKeating and Mr Hotchkiss, referred to at paragraphs 154-159 above. I accept, of course, that I must be very careful in respect of such material because it could not be challenged in cross-examination. However, I consider that, at the very least, that contemporaneous material supports the Claimants’ case, admitted on the face of the Defence, that the fire started at the hot wire cutting machine, and spread quickly to the surrounding blocks. It is material which, as Mr McKeating correctly pointed out at the time, is entirely consistent with the original account of the circumstances of the fire given by Mr Abbas, and which I have accepted for the reasons set out above.

The Claimants called two experts. Mr K A Howe gave expert evidence relating to polystyrene processing and appropriate fire precautions. Dr P Beeley gave evidence as to the cause and spread of the fire, as well as giving some evidence about fire precautions and the like. There was an inevitable overlap between the evidence of these two men. The First Defendants adduced expert evidence from the Third Defendant, Mr Michael Edge who, as set out above, was also a witness of fact. Whilst there is no doubt that expert evidence can properly be given by a Defendant on his own behalf, it is correspondingly more difficult for such a witness to fulfil his independent duty to the court. In general terms I believe that Mr Michael Edge did his best to fulfil that duty, although there were occasions on which I had no doubt that he was arguing from his own interests rather than from an objective analysis of the facts. More fundamentally, I consider that both Mr Howe and Dr Beeley adopted a much more logical and meticulous approach to the issues than Mr Edge. Accordingly, I confirm at the outset that, in general terms, I preferred the evidence of Mr Howe and Dr Beeley to that of Mr Edge.

The issue as to the cause of the fire really came down to this: Mr Howe and Dr Beeley had no doubt that the fire had been caused by a wire breaking on the hot wire cutting machine and snapping back to touch either another wire or the earthed frame, causing a spark which ignited the residual pentane in the block that was being cut. Mr Michael Edge, on the other hand, had various reasons for saying that, in his view, such a scenario was essentially impossible, and that, in the absence of any other theory, the cause of the fire was wholly inexplicable. Accordingly, before going on to look at some of the specific differences between the experts in greater detail, it is sensible to identify their general views and the particular points between them.

At paragraph 9.1 of his report Mr Howe said:

“I believe that the fire was caused by a wire breaking on the cutting machine and the resulting spark igniting the inflammable gases issuing during the cutting process and then, almost immediately, the block jammed between the slicing bars on the cutting machine and this caused the conveyor motor to trip out on overload.”

Dr Beeley’s report concluded as follows:

“276.

The cause of the fire on the 6 August 2003 was a hot wire cutting machine used to cut up scrap blocks of EPS for recycling. The fire was probably associated with an arc or spark caused as a result of the breaking of a wire, which ignited the block being cut.

277.

The EPS manufacturing process carried out by SPI was clearly associated with a serious risk of fire. This stemmed from the inherent flammability of the materials being handled, the amounts of material present and the risk of ignition attending certain of the processes being carried out. In particular hot-wire cutting is a known process fire risk.”

Thus, both Mr Howe and Dr Beeley had reached the same conclusion as to the cause of the fire. Moreover their conclusion can hardly be described as extraordinary, since fires caused by broken fires were, as we have seen, not an uncommon occurrence at Unit D.

On the other hand, Mr Michael Edge was of the view that “the fire ignition must have been down to an unavoidable accident”. This view, he said, was based on his knowledge and experience of the polystyrene processing industry and his experience of designing and building hot wire cutting machines.

Physical Evidence

As I have noted, as a result of the points taken by Mr Michael Edge, there was a range of technical disputes between the experts. I go on to deal with those at Sub-section c) below. But, before doing so, I should make plain that, in my judgment, these disputes were very largely matters of academic interest only. The core issue for me to decide is whether the Claimants’ case as to the cause of the fire was, on the evidence, more rather than less likely to be correct. I have already made plain that, on the factual evidence, the contemporaneous accounts of the circumstances of the fire from Mr Sayeed Abbas and the Polish workers (which I have accepted) were wholly consistent with the Claimants’ case to causation. I have also set out the evidence that fires on hot wire cutting machines caused by wire breaks were known at Unit D long before this fire, another factor which demonstrates, in my view, that the Claimants’ case on causation is more likely than not to be correct. Does the expert evidence support or contradict that case?

It seems to me that the expert investigation after the fire produced evidence that leads inexorably to that same conclusion, that the fire was caused by a broken wire. Moreover, it was just about impossible for the First Defendants sensibly to challenge that aspect of the expert evidence. It is therefore appropriate to set it out in some detail.

At paragraph 9.2.2 of Mr Howe’s report, he said this:

“The wires from the PB machine were recovered from the scene of the fire by Dr P Beeley, the Claimants’ forensic expert, and Mr Hotchkiss of Hawkins and Associates, the Defendants’ forensic expert.

If a wire had broken, this should show as ‘necking’ on two of the wires on the cutting machine, one on each side of the break. The recovered wires from the machine were examined under a microscope and photographs taken at Hawkins and Associates office. Two of the wires did show signs of ‘necking’ – figure 11 and 12.

This confirms that a breaking wire was the cause of the fire on the PB machine.”

As might have been imagined, Dr Beeley dealt with the evidence of the wires after the fire in greater detail in his own report. The relevant paragraphs are paragraphs 160 and 162. They read as follows:

“160…It was noted that arcing appeared to have affected low voltage cables associated with the machine (photograph 29). A close up view of one of the pneumatic rams used to tension wires is shown in photograph 30….

162.

The remains of a number of the cutting wires were located (photograph 32-34). These were partly fused into solidified molten glass which had fallen during the fire from glazing panels fitted at roof levels. Without the benefit of a microscopic examination it was not possible to be certain, however there appeared to be evidence of electrical arcing on one of the wires. The wires were carefully recovered. They were removed from the site by Mr Hotchkiss of Messrs Hawkins for further examination in the laboratory.”

Section 6 of the report of Dr Beeley is then concerned with various exhibits and experiments. Dr Beeley here confirmed that evidence of necking was apparent on examination of the wires which meant that at least one of the wires had broken. Further, in his report at section 7.4, he went on:

“240.

Considering all the above factors an arc or spark from a broken wire is most likely to be responsible for a fire on this type of machine and, as I understand it, this reflects industry experience.

241.

In the present case the fire appears to have occurred on the top of the blocks. The physical evidence suggested that it was probably the wire from the top of the frame that had undergone arcing. The evidence was consistent with arcing persisting whilst the wire was dragged in contact with another conductor at different electrical potential. This would have increased the time for which the arc was able to burn and made it more incendive.

242.

In the present instance the top slice being cut was apparently very thin. A broken wire at this point would produce an incendive spark etc in a position where a flammable mixture could more readily form. As discussed, there may possibly be further reasons why wire breakage at this location might be more likely to occur.

243.

There was also evidence in terms of necking of wires to suggest other wires were over tensioned, probably whilst they were heated. It is possible that this was in some way linked to the block becoming stuck in the machine…

244.

It can however be concluded, with some confidence in my view, that the fire started as a result of wire breakage and that initially it involved a small area on the top of the block.”

On behalf of the First Defendants Mr McGee, as he was bound to do, cross-examined Dr Beeley on these conclusions and the physical evidence upon which they were based. Dr Beeley did not resile in any way from the conclusions set out in his report. He was asked how he could identify the wires and be sure that they were the wires on the machine in question, and he explained how, having found the control panel in the wreckage once the roof was removed, the wires were found in the bed of the machine. It was suggested to him that the wires had been damaged by the collapsed glazing in the roof, but Dr Beeley was clear that the evidence of necking and arcing was not caused by the collapse but instead demonstrated the cause of the fire. He said that “there was something on the end of the wire which was consistent with arcing. The wires were then examined under the microscope in detail. That showed arcing.” He said that arcing was significant and that he (and indeed Mr Hotchkiss) had regarded it as clear evidence as to the cause of the fire.

Dr Beeley went on to explain that arcing on one side was consistent with one wire being dragged over the other which was also consistent with breakage. Arcing was caused by the contact between the live wire and the earth. He said:

“Accordingly, one can surmise that this was consistent with a broken wire at live voltage coming into contact with a wire at a different voltage or the frame of the machine. This was electrical arcing. It did not come about during the fire itself.”

When he came to summarise his evidence at the end of his cross-examination Dr Beeley said that the fire was probably due to a spark from a wire breakage because “the physical evidence was very strong” in support of such a theory. He stressed that the physical evidence of the machine found after the fire not only made it most unlikely that Mr Abbas’ new version of events was true, but it also fully supported Mr Abbas’ original version of events. As Dr Beeley memorably concluded: “physical evidence cannot lie”.

Accordingly, it seems to me that I am bound to accept Dr Beeley’s clear evidence as to the physical evidence (and its significance) found after the fire. He demonstrated beyond doubt that the physical evidence is consistent only with a wire breakage and arcing, and that this was the cause of the fire. Accordingly, the Claimants’ expert evidence and post-fire investigation are entirely consistent with and supportive of Mr Abbas’ original account as to how the fire started. In my judgment, this renders of little or no account the theoretical disputes between the experts. However, for completeness, I deal with the main theoretical disputes below.

Amount of Residual Pentane

It appeared to be Mr Michael Edge’s view that there could not have been sufficient residual pentane in the blocks that were being cut up on the machine to start a fire. No detailed analysis was put forward in support of this proposition. Instead, the evidence put forward by Mr Edge was somewhat impressionistic, as exemplified by paragraph 15 of his statement:

“The pentane levels in the block are so low that I recall on one occasion the health and safety executive visiting my factory and testing air around the blocks stored on the factory floor and could not locate any pentane content in the air.”

However, when the figures relied on by Mr Howe, and referred to at paragraph 56 above, were put to Mr Edge in cross-examination, his only real comment was that the “figures can vary quite substantially”. Whilst the technical documents contained a variety of figures for residual pentane, it did not appear that Mr Edge, from his own knowledge or from any experiment that he had done, could really quibble with the proposition that, following moulding, there was a maximum of 3.5% pentane by weight residual in the EPS. I reject the suggestion, in one unsupported document from Plastics New Zealand, that the pentane disappears altogether during the moulding process. That suggestion is contradicted by all the rest of the technical literature, and the evidence from Mr Howe and Dr Beeley, which I accept.

The 3.5% figure for pentane by weight after the moulding process, put forward by Mr Howe, was coupled with his figure of 4.7% of pentane by volume remaining in the polystyrene cells after moulding. That figure, explained by Mr Howe during his cross-examination, was not itself challenged by Mr McGee. This calculation demonstrated that there was more than enough pentane in the blocks after moulding to ignite, if there was a source of ignition, given that the minimum ignition level of pentane was 1.4% by volume.

Mr McGee spent some time endeavouring to demonstrate that residual pentane would not have existed in such concentrations because of the particular circumstances at Unit D. His first point was to suggest to Mr Howe that, given that the blocks being cut were within a large factory area, the amount of residual pentane, compared to the volume of the upper floor area, would have been tiny, and nothing like the 1.4% figure needed for ignition. However, Mr Howe said that that was not the right comparison, because the residual pentane would be within the individual cells making up the expanded polystyrene, and/or within air pockets inside the blocks. The problem, according to Mr Howe, was that, if the pentane was within these pockets in a sufficient amount, it could be ignited by the spark caused by the broken wire on the cutting machine. I accept that evidence.

Mr McGee’s other line of attack on this topic was to suggest that the pentane, even at 3.5% by weight following moulding, would continue to disperse thereafter and that, by the time the blocks came to be cut up on the hot wire cutting machine, a considerable further dissipation of the residual pentane would have taken place. It is certainly right that there would have been a further loss of pentane following moulding, but, on the evidence before me, I could not possibly say that the pentane would have reduced to less than 1.4% by volume, which was the minimum figure required for ignition. One reason why there was no evidence to make good such a contention was the First Defendants’ failure to put in hand the pentane monitoring exercise recommended by their own consultant in 1999.

Furthermore, this point was complicated still further by the significant debate in the evidence as to the age of the blocks in the reject store that were being cut up by Mr Abbas. It was the First Defendants’ case that there was a mandatory 24 hour curing period and that, therefore, the blocks being cut up would be at least 24 hours old. This, according to the First Defendants, meant that the amount of residual pentane would have reduced further before the blocks were put on the hot wire cutting machine.

I accept that, in general terms, the First Defendants endeavoured to operate a 24 hour curing period, although I am not persuaded that it was a very scientific process. Mr Abbas appeared to have no knowledge of it. But it seems to me that such a curing period, on the First Defendants’ own case, could only have delayed the entry into the reject stack of those blocks rejected as a result of the Quality Control procedure. Blocks that failed the Quality Control procedure might well have been allowed to cure for 24 hours before the procedure was applied, and therefore would have stood for at least 24 hours before being put into the reject stack. But there was no evidence that blocks which were rejected on a visual inspection immediately following moulding waited any time at all before being put into the reject stack. If they were put into the stack straight away, Mr Abbas would have proceeded to cut them up, given that he had not been told to do otherwise. He only had 2 or 3 hours’ worth of blocks to cut up on the night shift in any event. Accordingly, it seems to me that it was entirely possible that at least some of the blocks being cut up by Mr Abbas on the 6th August had been recently moulded, and would therefore have probably had residual pentane of up to 3.5% by weight, or 4.7% by volume, which would have been more than sufficient to cause ignition, provided there was a spark.

Flammability

The First Defendant seemed, at least at one point during the trial, to be suggesting that the EPS was not a particularly flammable material. It was a little difficult to see where this point went, given the unchallenged evidence of the fire officers that the fire at Unit D burnt for as long as it did because of the presence of large quantities of EPS. Moreover, as Mr Howe made plain, the real problem in this case was the combination of the EPS and the residual pentane. It was the pentane that was initially ignited by the spark and would, according to Mr Howe, have been visible as a blue flame on the polystyrene block. He drew the analogy with a spoonful of brandy on a Christmas pudding.

Mr Howe said that, once the pentane had caught fire first, in this instance it then set fire to the block. He made it clear that this would not happen every time: as he put it, “not every wire break is a fire”. His evidence was that the fire occurred in this case because the conditions were right. In particular, he referred to the fact that the top sheet of the block being cut up was, on the evidence, very thin, and that there was a pocket of pentane within that sheet which ignited and set fire to the rest of the block. This was what the Polish workers saw when they first became aware of the fire.

Dr Beeley gave similar evidence. He said that polystyrene was quite a bit easier to ignite than other material. Whilst he accepted that, in the absence of pentane, he would not expect a polystyrene block to ignite readily, he made plain that the pentane, and the spark that ignited the pentane, were the key elements in the start of the fire. He also said that once the polystyrene block had ignited, it would burn readily.

I accept the evidence of Mr Howe and Dr Beeley. Indeed, by the time that Mr Michael Edge came to give his evidence, it was unclear what, if any, elements of their evidence on flammability he disputed. It was undoubtedly true that some of the experiments carried out by Mr Edge, in the absence of Mr Howe and Dr Beeley in October 2004, and in their presence in June 2005, demonstrated that it was not particularly easy to set fire to a block of polystyrene. However, it seems to me that that did not and could not detract from the simple proposition that, in the present case, the circumstances were such that, on this particular occasion, the block on the machine did catch fire, as was observed by the Polish workers who tried to put it out.

Temperature Of The Wires

There was a large amount of cross-examination of the experts about the temperature that the wires would have to reach in order to cause a fire. Essentially, it was Mr Michael Edge’s case that the wires might not be any hotter than 79C in order to cut through the polystyrene, and that therefore the temperatures quoted in the technical literature of 250-300C were completely exaggerated.

The first point to make is that, in my judgment, the temperature that the wires on this machine might have reached was irrelevant to the issues surrounding the cause of the fire. The fire was caused by a spark which ignited the pentane. The spark did not arise because of the great heat of the wires, but because one of the wires broke and touched either another wire or the frame of the machine, which in turn caused a spark. It was the spark which caused the fire, not the residual heat of the wires. Accordingly, whilst I deal with the temperature point in brief below, it seems to me that it is of no ultimate relevance to my conclusions.

The technical literature identified a variety of temperatures which the wires might reach. There was also a range of temperatures at which the polystyrene was said to soften and melt. It is unnecessary for me to set all that material out in any great detail. It seems to me that, from all the material that I have seen, EPS may begin to soften at 79C, although it probably does not melt until the wires are at 100C or more. I consider that, on the 6^th August 2003, the wires on the hot wire cutting machine may have reached a temperature well in excess of 100C, and maybe even closer to 200 C. However, I think it unlikely that the wires achieved the temperature of 300C or more referred to in the technical literature. I accept Mr Michael Edge’s view that those figures are now out of date.

I should say a word about the experiments carried out in October 2004 by Mr Michael Edge, which were effectively redone in June 2005 in the presence of Dr Beeley and Mr Howe. It was Mr Edge’s case that those experiments showed that the wires on a hot wire cutting machine did not exceed a temperature of 176 C and that, at 79 C, the foam ‘softened’. Mr Howe and Dr Beeley had a number of criticisms to make about the reliability and accuracy of these experiments, and did not resile from the much higher figures in their reports. I consider that the experiments do show that temperatures of 300 C are generally unlikely, although it is equally clear that the wires could easily reach temperatures up to and even beyond 176 C. But the most important point to make is that, for the reasons which I have previously stated, these theoretical figures are of no real relevance to the issues before me, since what mattered was not the precise temperature of the wires at the time of the fire, but whether or not a spark was created following the breakage of one of the wires on the machine. For all the reasons that I have set out above, I have no doubt whatsoever that there was such a spark.

It seems to me that the expert evidence which I accept can fairly be summarised as follows. Wires can break on hot wire cutting machines: indeed it happens all the time, and it happened on this machine only the day before the fire. It happened again on 6^th August, because the physical evidence recovered after the fire showed that necking on the wires had occurred. If a broken wire touches either another wire or an earth, there can be arcing and a spark can be created. Again, the physical evidence showed that arcing had taken place. The spark thereby caused can ignite any pentane that may exist in or around the block in greater volume than 1.4%. That can then lead to fires. Such fires appear to have occurred before at Unit D. There is nothing extraordinary about such an analysis: indeed, it might be fair to describe it as a mundane and unremarkable explanation which was simply consistent with all the facts.

Essentially, I consider that Mr Michael Edge’s attempts to demonstrate that the fire was inexplicable were fundamentally flawed. At one point, he appeared to be arguing that, if the Claimants were right, fires would occur on the hot wire cutting machine every time a wire broke. His whole stance was summarised by his answer towards the end of his cross-examination when he said:

“I decided from Day 1 that the fire did not start on this machine.”

It seemed to me that, thereafter, Mr Michael Edge devoted himself to demonstrating that the fire did not start on the machine (despite the pleaded admission that it did) and he endeavoured to do so by demonstrating that each of the steps in the Claimant’s case on causation would not or could not have happened.

Mr Edge apparently failed to appreciate that the Claimants’ experts were not saying that every wire break would cause a fire. Indeed, as I have explained, their evidence was to the contrary. They were making it clear that the various steps in the sequence (residual pentane, breaking wire, spark igniting the pentane, the burning pentane then igniting the block on the machine) were all possibilities which, in the right (or, rather, wrong) conditions, could combine together and give rise to a fire. It seems to me that their collected evidence was perhaps best summarised by Mr Howe during his cross-examination when he said that, on many occasions, the wires would break and there would be sparks but there would be no fire. He said of such circumstances:

“The conditions were not right. I have said that a wire break can cause a fire. I have not said that it does. It may not because there is no appropriate gas mixture in the pockets. It depends on the conditions.”

Finally, I should observe that Mr Michael Edge came much closer than he realised to accepting that the fire started in the way explained by the Claimants’ experts shortly after the fire itself had occurred. I have referred to Mr Hotchkiss’ interviews with various people in the days following the fire. Mr Hotchkiss interviewed Mr Michael Edge on 8th August 2003 and, as noted at paragraph 115 above, Mr Edge there talked about broken wires giving rise to occasional incidents “where ignition of block has occurred”. That was put to Mr Michael Edge in cross examination. Tellingly, he said that “this was my explanation of how the fire might have started on this machine”. A little later, he endeavoured to back-track and said (like Mr Mallison before him) that he was essentially talking about older-style machines. I reject that explanation: as I have already said, Mr Hotchkiss had no interest in the historical position in relation to old machines, and was solely interested in this machine and the possible reasons for this fire. I accept Mr Edge’s admission that, on 8th August 2003, he was talking about wire breaks as a potential explanation of this fire. I consider that he was right to do so because that was, in all the circumstances, the obvious explanation for the fire. Thus, on all the evidence, whether it be factual, physical, or expert, I am in no doubt that the fire was caused by a broken wire on the hot wire cutting machine which led to a spark which in turn ignited the pentane envelope and set fire to the block on the machine. All the evidence points unequivocally to this conclusion.

I find that Mr Abbas’ contemporaneous account of the circumstances of the fire, given separately to Mr McKeating and Mr Holmes of the Fire Service, and Mr Hotchkiss, in August 2003, was an accurate account: see paragraphs 147-153 above. In particular I find that Mr Abbas heard a noise caused by a breaking wire and that, shortly thereafter, the block on the machine caught fire. I find that Mr Abbas did not shout ‘fire’ or try and put the fire out or use the fire extinguisher close to the machine and that instead, doubtless in panic, he ran to the stairs leading down to the lower floor and went downstairs. I find that, whilst he was away from the machine, the blocks on the machine became fully alight. At that point, but not before, the Polish workers at the other end of the upper floor became aware of the fire. I find that, despite their best efforts, they were unable to put out the fire on the machine which very quickly spread to the stored blocks that were surrounding the hot wire cutting machine. From that point on, it was impossible for the employees to put the fire out and they sensibly evacuated the building. By the time the Fire Brigade arrived promptly in answer to the alarm call, the fire had taken hold and was blazing furiously, doubtless as a result of the large quantities of EPS at Unit D, both in block form on the upper floor and in bead form on the lower floor.

I reject, as lacking all credibility, Mr Abbas’ later explanation that he turned the machine off and went down stairs, only finding the fire on his return. My detailed reasons for rejecting this version of events are set out at paragraphs 166-168 above. I find that this very different account was created specifically by Mr Abbas with the intention of avoiding any criticism that could otherwise have been made of his conduct. However, I should also make clear that, on his account of the events which I have accepted, I do not believe that any criticism could properly attach to Mr Abbas in any event.

I find that, on the evidence, the fire was caused by a broken wire. I find that such broken wires were a relatively common occurrence on hot wire cutting machines such as the one being operated by Mr Abbas. In this instance, the wire snapped and one end of the wire touched either another wire or the frame of the machine. Either way, the consequent arcing created a spark which ignited the pentane envelope within the block on the machine. That, in turn, led to the ignition of the block itself.

I expressly reject the suggestion that the fire on the hot wire cutting machine was, in some way, inexplicable. To the contrary, the stages in the causation of the fire which I have outlined above were, on the evidence, overwhelmingly likely to have occurred, in particular because:

As indicated above, the fire spread quickly. There were a number of reasons for this.

First, I find that, when the fire first started, Mr Abbas panicked, and left the machine. He failed to shout ‘fire’ or alert his colleagues, and he failed to use the fire extinguisher in the vicinity of the hot wire cutting machine. By the time he returned with a fire extinguisher from downstairs the fire had taken hold on the blocks on the machine and, despite the best efforts of Mr Godwin and his colleagues, the fire could not be put out.

Secondly I find that, as Mr Stan Godwin said, the fire spread “very quickly” from the blocks on the hot wire cutting machine to the surrounding stock of blocks. Because the surrounding stored blocks, both reject and otherwise, were close to the hot wire cutting machine and were not separated or segregated in any way from that machine, there was an inevitable risk that, if the fire on the hot wire cutting machine was not put out immediately, it would spread to the polystyrene blocks in the upper floor and a major fire would eventuate. That is what happened here.

I find that the Fire Brigade were notified very soon after the fire and that they arrived promptly. For the avoidance of doubt I find that they tackled the fire in an exemplary manner. In particular, I respectfully agree with the decision made shortly after their arrival by the Fire Officers that Unit D was effectively unsalvageable, because of the intensity of the fire that had taken hold. I have no doubt that the intensity of the fire at Unit D was solely due to the large quantities of EPS (both in bead and block form) stored on the two floors of Unit D.

It is unnecessary for me in this Judgment to make any findings as to the precise nature of the damage caused by the fire. That will be a matter for the quantum hearing. However, it is clear that Unit D was essentially destroyed by the fire. The polystyrene continued to burn for about three days before the fire was eventually put out. The damage to Unit D was so bad that the First Defendants have not taken any steps to rebuild or reuse Unit D. Instead the First Defendants promptly switched their production processes to another site altogether.

The fire caused considerable damage to the structures, particularly the roof, of Units B and C and to the stock and machinery therein. There was a particular difficulty in respect of the party wall between Units B and C on the one hand and what was left of Unit D on the other. That had been an internal wall. Following the destruction of Unit D it became an external wall, exposed to the weather. It was also required to take the downward loading of the collapsed roof and suffered deflection and damage as a result. It required extensive remedial work. I find that such work has not yet been carried out.

Further, I find that, as a result of the failure of the roof trusses in Unit D, serious distortion was caused to the roof trusses above Units B and C.

On the 7 July 2004 there was a fire on a hot wire cutting machine at the First Defendants’ new premises. This fire is referred to in detail by three of the First Defendants’ witnesses: Mr Craig Mallison, Mr Julian Bulmer and Mr John Painter, the last being the man actually operating the cutting machine at the time of the fire. There is also a CCTV film of the machine being operated by Mr Painter and the commencement of the fire.

Ordinarily, the existence of another fire on another machine at another location would be of little or no relevance to a dispute of this kind. However, the evidence of this later fire was adduced by the First Defendants because they sought to rely on it to support their case that the fire on 6th August 2003 could not be explained. It was the First Defendants’ positive case that the later fire in July 2004 was likewise inexplicable.

For the reasons set out in some detail above, I have found that, far from being inexplicable, the fire on 6 August 2003 had a very simple explanation. But, for the avoidance of doubt, I should also say that I am equally clear that the cause of the later fire in July 2004 was also very straightforward.

Mr Painter, the operator, told me that he turned the machine off and went for a break, leaving a new block hard up against the wires in preparation for the commencement of cutting operations after his break. However, it is clear to me that Mr Painter did not switch off the computerised control element of the machine and that, as a result, and contrary to his understanding, he had not turned the machine completely off. Thus the machine was left on, with a polystyrene block hard up against the wires. In consequence, the fire started in the manner demonstrated by the CCTV footage.

There are essentially three reasons which lead me to conclude that the machine was not fully switched off. First, as Dr Beeley made plain, the polystyrene could not have smouldered or self-ignited. Therefore the machine must have been left switched on. Secondly, as Mr Howe pointed out, on the CCTV footage Mr Painter did not press the emergency stop button. Mr Howe said that, whilst it was clear that Mr Painter pressed the pause button, he did not press the emergency stop button. It was put to him that this was wrong and that, although difficult to spot on the film, Mr Painter’s hand did reach across to the emergency stop button. Mr Howe remained firmly of the view that Mr Painter had not pressed the stop button. On my viewing of the CCTV footage I am bound to agree with Mr Howe: the emergency stop button was not pressed. Accordingly the machine was left on.

Thirdly, and finally on this point, the manufacturers of the relevant machine, Pantel and Bromser, were themselves quite clear that the fire started because the machine had not been switched off and was left on with a polystyrene block touching the hot wires. In their email of 17^th June 2005, sent to Mr Howe, they said unequivocally that “the machine was not switched off because we can see that the monitor was on”. I accept that statement, noting that it was made by the people who probably know more about the machine than anyone else.

Accordingly, to the extent that it is relevant, I find that the fire in July 2004 was due to a block being left against the wires of a machine that was not switched off. Perhaps more importantly, I am bound to note that it is curious, to say the least, that the First Defendants, through the agency of Mr Michael Edge’s expert’s report, were seeking to rely on another allegedly mysterious fire to support their case as to the inexplicability of the August 2003 fire when, in truth, just as with the August 2003 fire, there was a clear and unsurprising explanation for the later fire in the written and CCTV evidence. Thus, I consider that the introduction of the later fire into this case demonstrated that the First Defendants, and Mr Michael Edge in particular, were willing to go to great lengths to try and counter what were otherwise clear explanations for events at their premises, if they considered such explanations were to be to their disadvantage.

I have identified the relevant principles of law in Section B (paragraphs 12-33 above).

Clearly, on the basis of my findings set out in paragraph 74 above, the answer to this question is Yes. The First Defendants brought onto Unit D large quantities of inflammable EPS. The particular risk of fire was created by the pentane within the EPS, which was used as a blowing agent. The technical literature, which I have summarised at paragraphs 60-73 above, makes it clear beyond doubt that the EPS/pentane was flammable, a known fire risk and potentially dangerous.

Again, on the basis of my findings at paragraph 74 above, the answer to this question is Yes. There are two particular reasons for this conclusion. First, the storage of the blocks on the upper floor made fire spread very likely, given that those blocks were not segregated or compartmentalised, and were very close to a source of ignition, namely the hot wire cutting machine. The second reason was the hot wire cutting machine itself. That treated the inflammable material in a way which made fires a real probability; indeed, fires on hot wire cutting machines, including this one, were a common occurrence at Unit D.

On the basis of the evidence set out in Sections F and G above, there can be no doubt whatsoever that the EPS, pentane and the hot wire cutting machines, taken separately or together, represented a recognisable risk to the Claimants. Indeed, they were risks that were recognised, not only by the general technical literature, but by the Fire Authority and the HSE in relation to Unit D itself. Unfortunately, the statutory authorities were unable to persuade the First Defendants either to compartmentalise the stored blocks or to install an automatic fire detection system. The First Defendants’ attitude throughout the correspondence, which I have summarised at Section G above, showed a marked lack of interest in doing anything beyond the bare minimum that prevented the start of enforcement proceedings against them.

Accordingly, the Claimants’ claim based on Rylands v Fletcher, requires one final ingredient to succeed. Can it be said that the First Defendants’ use of the land, as set out above, was ‘non-natural’, so as to bring the Claimants within the scope of the rule? I have no hesitation in finding that the First Defendants’ use of the land was a non-natural user. This was not a case where the damage was caused by an everyday element of modern life, like the domestic water pipe in Transco. This was a situation where the land was used for a specific manufacturing purpose which, for the reasons which I have given, involved a very real risk of danger to adjoining land owners. Indeed, I can see no substantive difference between the storage of the chemicals for the purposes of a tanning process, as in the Cambridge Water case, and the storage of EPS, with pentane, in and around the hot wire cutting machine, in this case. The House of Lords found that the storage of chemicals in Cambridge Water was a non-natural user, just as Mackenna J had found that the storage of inflammable materials in Mason was a non-natural user. I consider that the storage and use here which I have described in some detail above was a non-natural user of land. In my judgment, not only was the physical situation at Unit D very similar to that in Cambridge Water, but I also consider that Lord Goff’s remarks, to the effect that it is difficult to see how a finding of strict liability in such circumstances could possibly be regarded as objectionable, are equally applicable to the present case.

That conclusion is not altered by the two factors identified by Lord Hoffman in Transco. First, there are no specific statutory provisions relating to the storage of EPS or the safe use of hot wire cutting machines in or around EPS and moulded polystyrene blocks. Although there were various general Fire and Health and Safety Regulations which applied to Unit D (and although, as we shall see, I find that the First Defendants failed to comply therewith) those general Regulations were not what Lord Hoffmann was referring to. He was talking about the possible existence of Regulations which applied directly to the dangerous things being stored: Regulations which, in his Lordship’s words, provided “an exhaustive code of liability for a particular form of escape”. In this case, there were no such Regulations relating to the storage or manufacture of EPS, and Mr McGee did not seek to argue to the contrary. Accordingly, Lord Hoffmann’s first factor simply does not arise here. As to the second factor, namely the question of insurance, there was no direct evidence before me as to the insurance position of the Claimants. However, even assuming that, as may well be the case, the Claimants were insured for some or all of their losses, I consider that it would be wrong in principle for this one point to over-ride all the other findings that I have set out above, which explain why the rule in Rylands v Fletcher applies in the present case. Indeed, given that this was a matter on which Lord Hoffmann and Lord Hobhouse expressly disagreed, it would, I think, be a mistake for me to attach any real significance to the point at all. As to the matter of principle on which their Lordships disagreed, I offer my own view with great diffidence, but I am bound to say, with the greatest of respect to Lord Hoffmann, that I instinctively agree with Lord Hobhouse’s reasoning. It seems to me that the existence or otherwise of insurance in favour of a claimant should not, of itself, be determinative of that party’s right of action in law.

Accordingly, I find that the Claimants have made out their claim against the First Defendants under the rule in Rylands v Fletcher and the First Defendants are therefore liable to the Claimants without the need for the Claimants to prove negligence or nuisance.

Finally, on this aspect of the claim, I should deal expressly with a point made by Mr Michael Edge in his witness statement. At paragraph 18 he said this:

“Given the precautions I take at my factory, it would seem grossly unfair if I am found to be strictly liable for a heavily regulated manufacturing process, which provides benefits to the community.”

In my judgment, for the reasons which I have explained, it seems to me that, far from it being grossly unfair for the First Defendants to be found strictly liable to the Claimants in these circumstances, such an outcome is wholly appropriate and fair. They were responsible for creating the fire for the reasons set out above; in particular, it was their storage and use of dangerous materials, as part of a non-natural user of the land, which created a liability under the rule in Rylands v Fletcher. That said, given Mr Michael Edge’s reference to ‘precautions’ and to ‘a heavily regulated manufacturing process’, it is appropriate for me now to assume that I am wrong in my conclusions as to the applicability of the rule in Rylands v Fletcher, and to go on to consider whether or not the First Defendants were liable in negligence/nuisance for failing to take all reasonable steps (or ‘precautions’, to use Mr Edge’s word) to prevent the escape of the fire from Unit D to the Claimants’ property.

The allegations of negligence/nuisance made by the Claimants range over a variety of matters. However, I believe that they can be summarised into five areas. First, there is the general question relating to the nature of the duty owed by the First Defendants to the Claimants. I deal with that in Sub-section b) below. Secondly, the Claimants allege that the First Defendants’ training and safety systems in respect of their employees were inadequate. I deal with that at Sub-section c) below. Thirdly, the Claimants allege that the First Defendants failed to respond properly to the various interventions of the HSE and the Fire Authority, and in particular they contend that the First Defendants should have either put in some form of compartmentalisation so as to protect the stored blocks from the manufacturing process or should have put in a fire detection system that would have automatically sounded when the fire started. I deal with that in Sub-section d) below. Fourthly, there are the allegations about the inadequacies of the hot wire cutting machine itself, and, in particular, the absence of interlocks. I deal with that aspect of the case at Sub-section e) below. Finally, it is said that the First Defendants were negligent because they failed to install a sprinkler system and that, had they done so, the fire would have been put out before there was any damage to Unit D. I deal with that in Sub-section f) below.

I have dealt with the general nature of the tortious duty owed by the First Defendants to the Claimants at paragraph 39 above. I do not accept that it is right, as a matter of law, to say that the duty of care owed to the Claimants was different or more onerous than usual, simply because of the nature of the First Defendants’ business. What, however, I do conclude is that the First Defendants’ duty, to take reasonable care to ensure that there was no fire or that any fire did not spread to the Claimants’ property, must be considered in the light of all the relevant circumstances, and that these included the fact that fires were an accepted part of the manufacturing process at Unit D; that the First Defendants were aware or ought to have been aware of the need properly to train their employees to deal with fires and safely to operate the machines; that the First Defendants (through Mr Michael Edge) were involved in the design of the hot wire cutting machines and could, if they had wished, have insisted on the inclusion of safety features; and that the First Defendants were aware of both the potential dangers of pentane and the various measures for reducing fire risks which were recommended by the Fire Authority and the HSE. I am firmly of the view that, seen against that background, the First Defendants wholly failed to discharge their duty of care to the Claimants, and that entirely foreseeable damage resulted from their breach. My detailed reasons are set out below. My finding of a clear liability in negligence/nuisance on the part of the First Defendants mirrors the outcome of earlier authorities with very similar facts to this case, such as Hobbs and Burnie, set out in paragraphs 32 and 37-38 above.

As I have noted, Mr Michael Edge referred in his statement to the precautions which he claims were put in hand at Unit D and which, he said, made it unfair for him now to be found liable to the Claimants. In fact, on analysis, I find that there were no real precautions at all. There were regular fires, but the staff were not properly trained to deal with them. There were strenuous efforts by the authorities to get one or the other solution adopted, but in the event there was neither segregation of the stored blocks from the manufacturing process, nor an automatic fire detection system. There were no interlocks on the hot wire cutting machines, although the First Defendants’ own consultant had recommended that very course. And, although they knew just how potentially dangerous their premises were, the First Defendants wholly failed to put in hand the measures which might have protected their own employees, as well as the Claimants and the adjoining properties. For these reasons, I have no doubt that the First Defendants were in breach of the duty of care which they owed to the Claimants.

Training/Safety Systems

I am in no doubt that that First Defendants failed adequately to train Mr Abbas, and other employees, in respect of fire precautions at Unit D. I find that this was an aspect of the prevailing culture within the First Defendants, to the effect that fires were not something with which they had to be overly concerned. The findings set out at paragraphs 121-127 are therefore repeated. This failure to train their employees was particularly significant because the First Defendants had not followed the recommendations of the statutory authorities, preferring instead to operate a fire-fighting system that was dependant on those same employees: see paragraph 100 above.

In particular, I reject Mr Higgins’ evidence that he gave any sort of fire training or induction to Mr Abbas. I accept Mr Abbas’ evidence that he did not. As to fire training generally, I accept Mr Abbas’ original evidence, that he had no such training from anyone. Even if that was wrong, it is clear that, on Mr Abbas’ own evidence, his training was limited to some sort of introductory talk by Mr Zahir Bashir, largely in Urdu, which went no further than a demonstration in respect of a fire extinguisher and an indication of where some of the extinguishers and exits were. The very fact that nobody within the First Defendants can really say what was involved in Mr Bashir’s alleged training session is eloquent testimony, on their own case, to the inadequacy of their fire and safety training. At the very least, Mr Abbas should have been given a written procedure, in his own language, telling him what to do in the event of a fire. As I have already pointed out, the absence of written instructions was contrary to the HSE document referred to at paragraph 73 above.

Aside from the specific inadequacies in Mr Abbas’ training, I find that the First Defendants’ general training/safety systems in respect of fire were also deficient. There are four different aspects to this. First, I accept the evidence from a number of witnesses that there were never any fire drills or any other sort of factory-wide fire precaution exercises. I consider that that was a major omission, made considerably more significant by the fact that, on any view, fires were a regular feature of the manufacturing process at Unit D.

Secondly, I find that written risk assessments, of the sort requested by HSE (see paragraphs 93-94 above) were not produced. I consider that it is inconceivable that, if there had been any such assessments, given that the HSE had specifically requested them, they would not have been provided to them by the First Defendants. Copies would therefore now be available: as set out above, the HSE has provided copies of all their documents, and, aside from the document referred to at paragraph 89 above, they had no other risk assessments. The only proper inference to be drawn is that there were no such assessments in the first place. That, again, typifies the First Defendants’ approach: that fires were not something in respect of which they needed to have any special or particular precautions.

Thirdly, I note that, as set out in paragraph 89 above, the First Defendants’ own document recommended that, given the fire risks inherent in the use of pentane, the levels of pentane should be monitored. No witness could say that this was ever done and I find that it was not done. Finally on this topic, I find that there was no system at all for reporting and logging fires at Unit D, which meant that there was no way in which the First Defendants could analyse any sort of pattern and take steps to reduce the number of fires which occurred.

As far as the hot wire cutting machine itself was concerned, it is also clear on the evidence before me that Mr Abbas was not properly trained in the use of such a potentially dangerous machine. That was his evidence, and I accept it. I also accept Mr Sutcliffe’s evidence to the effect that he simply showed Mr Abbas the basic steps to operate the machine and did not give him any sort of instructions as to the proper maintenance of the hot wire cutting machine and the potential dangers it represented. I should say at once that this is not a criticism of Mr Sutcliffe because, as he himself pointed out in his evidence, he was not a supervisor and was not paid to give such instructions. The fault, therefore, was within the training/safety systems operated by the First Defendants. But it plainly was a fault, and a major one at that, because it meant that Mr Abbas had very little idea of how to operate the hot wire cutting machine. The most graphic example of this, of course, was his failure to appreciate the significance of breaking wires on the day before the fire, which led to a specific complaint by Mr Sutcliffe. I am in no doubt that, if Mr Abbas had been properly instructed in the use of the machine, he would have been taking much greater care on 6^th August when the block that was being cut up was going through the hot wires.

In addition, Mr Abbas’ repeated evidence, that he had been told not to touch either the speed dial or the temperature control on the hot wire cutting machine, also illustrates the failure of the First Defendants’ training regimes. The whole point of those controls was to ensure that the machine could adjust to the particular blocks being cut up, with the process being speeded up or the wires heated further if there were particular problems with a block passing through the machine. Mr Abbas’ evidence meant that he was effectively using the machine without being able to make such necessary adjustments or even understanding why they might be necessary. It was a manifestly dangerous situation, created by a failure to train Mr Abbas in the proper operation of the machine he was using.

There is one last point to be made about the absence of a proper and safe system of work in connection with the hot wire cutting machine. Since it is common ground that the pentane within the blocks dissipated over time, the longer the period between the moulding of the blocks and their presence on the hot wire cutting machine, the less pentane there would have been to ignite. There is no doubt that there was no proper and effective system in place to ensure that only mature blocks were exposed to the hot wire cutting machine. Mr Abbas was cutting up the blocks in the reject stack; he had no idea how they got there or when they had been moulded. He did not know that blocks moulded more recently represented a greater fire risk, because the First Defendants had not told him. There was, in fact, a very real risk that, even if the blocks which failed the QC procedure had been moulded for at least 24 hours, the blocks which failed a visual inspection might be put in the reject stack very shortly after manufacture, when the residual pentane levels would be correspondingly higher. Mr Abbas would have been wholly unaware of this.

Although it adds nothing to the Claimants’ substantive case, I should say that, as a result of my findings as to the First Defendants’ training/safety systems, I consider that they were in breach of the Management of Health and Safety at Work Regulations, 1999. In particular, in breach of Regulation 7(8), they failed to identify and give effect to appropriate procedures to be followed in the event of serious and imminent danger to their employees, and failed to give sufficient warning to their employees about the dangers, in particular those posed by the hot wire cutting machine. The failure to provide all relevant information to their employees also rendered them in breach of Regulation 10.

For all these reasons, therefore, I am firmly of the view that the First Defendants’ training of Mr Abbas, both in respect of fire generally and the use of the hot wire cutting machine in particular, was inadequate. The safety systems in place, such as they were, were unsatisfactory. As I have noted, I consider that this was all symptomatic of the First Defendants’ cavalier attitude to the potential risk of fire at Unit D. I find that, if proper training and safety systems had been in place, then, on the balance on probabilities, the fire would either not have started at all or, if it had done, would have been confined to the blocks on the cutting machine, as had happened before at Unit D, and indeed as had apparently occurred only the week before the fire with which I am concerned.

The Claimants say that, arising out of the correspondence analysed in Section G above, the First Defendants should either have ensured that the EPS and, in particular, the newly-finished blocks, were compartmentalised and/or segregated properly from the manufacturing process for fire safety purposes. Alternatively, they contend that the First Defendants should have installed a fire detection system which would have meant that alarms would have sounded automatically once there was a fire on the hot wire cutting machine. The First Defendants’ answer to that is to say that, since they had apparently satisfied the Fire Authority and the HSE in respect of such matters, it is now wrong in principle to rely on such allegations in support of a case of negligence.

I have already expressed my concern about this line of argument, particularly in circumstances where the First Defendants did not supply full information to the relevant authorities: see paragraph 94 above. Further, in my judgment, it is wrong in principle for the First Defendants to contend that, simply because the Fire Authority and the HSE chose not to issue enforcement proceedings against them, this somehow demonstrates that they satisfied their duty of care to the Claimants to take all reasonable steps to ensure that fire did not escape from Unit D to the adjoining units. As I have noted above, on any fair reading of the correspondence set out at Section G above, the HSE and the Fire Authority wanted the First Defendants either to compartmentalise the storage of the blocks with fire-resisting walls or to put in an automatic fire detection system. It was the First Defendants’ decision to do neither of those things. Mr Kay of the HSE made it clear that, as far as he was concerned, whilst he wanted one or the other to be done, he was concerned about issuing enforcement proceedings at the Magistrates Court given that, as he said, the point might be something of a “grey area”. I do not believe that Mr Kay can be criticised for deciding not to issue such proceedings. But that does not mean to say that, on the evidence which I have heard, the First Defendants’ decision to take neither of the recommended steps must automatically be regarded as non-negligent.

On the contrary, the technical literature and the correspondence, which I have analysed in Sections F and G respectively above, make it clear beyond doubt that a reasonable polystyrene manufacturer in the position of the First Defendants would and should have either properly separated the stored blocks or installed an automatic fire detection system. I regard the decision to do neither, despite the clear recommendations of the technical literature and the HSE and the Fire Authority, as plainly negligent. The reason given for not properly separating the stored blocks- that compartmentalisation would mean that employees at one end of the upper floor would not see a fire developing at the other end of the upper floor- was quite untenable for two different reasons. First, the height of the stored blocks, which Mr Michael Edge put at 12 foot, meant that those employees could not see from one end of the upper floor to the other in any event, except perhaps for a narrow row between the stacks. Secondly, as I have already pointed out, such a decision unreasonably put the onus for discovering and fighting any fires on the upper floor firmly on the employees themselves. This only serves to highlight the First Defendants’ failure properly to induct and train those employees, like Mr Abbas, to fight such fires.

I also regard the decision not to put in an automatic fire detection system as negligent. As I have said, it was clear from the correspondence that it was what the HSE and/or the Fire Authority wanted if the stored blocks were not going to be segregated. The installation of such an automatic system in place of compartmentalisation would, on his case, have allowed Mr Michael Edge to achieve his stated aim of allowing his employees a sight of the other end of the upper floor in order to spot fires. Mr Edge had no explanation as to why the automatic alarm system had not been installed, and no-one else offered one. That leaves the only fair inference to be drawn, that the automatic system was not installed because of cost considerations. I have already made the point that not only did the Claimants have such an automatic system in their adjoining premises, but it was that system which alerted the Claimants to the fire in Unit D and allowed them to evacuate Units B and C safely. It is hard to imagine a more graphic demonstration of the need for premises such as Unit D to have an automatic fire detection system. The can be no doubt, therefore, that the First Defendants’ decision not to install such a system, despite the request from the HSE/Fire Authority, was negligent.

The findings of fact set out above also mean that the First Defendants were, in my view, in breach of the Fire Precautions (Workplace) Regulations 1997. In particular, they were in breach of Regulation 4(1), because, given the activities carried on at Unit D, and the hazard they so obviously created, it was not only ‘appropriate’, but absolutely essential, that an automatic fire detection system was installed.

The one risk assessment document produced by the First Defendants recommended that interlocks be provided on the hot wire cutting machines to ensure that, if the conveyor jammed, the current to the wires would be switched off: see paragraph 89 above. Mr Michael Edge told me that, so great was his experience, he helped to design the cutting machines. However, as I have found at paragraph 112 above, no such interlock was included in the hot wire cutting machine where the fire started. In failing to follow the recommendations of their own written risk assessment, the First Defendants were plainly negligent.

It was part of the Claimants’ case that the First Defendants were negligent because they did not have a sprinkler system. In my judgment, as a stand-alone allegation of negligence, this criticism must fail.

It is common, following a catastrophic fire in this country, for the media to point out that the fire would not have occurred if there had been a sprinkler system: the major fire at the centre for asylum-seekers a few years ago was a case in point. The answer to the point is equally simple: there is no mandatory requirement in this country for most large buildings to have sprinkler systems. It is therefore difficult to say that the owner of a building can be negligent for not installing something which was not statutorily required, unless, as happened here in respect of all three of the compartmentalisation and fire detection and interlock points, the statutory authorities or the owners’ own consultant made a recommendation that was ignored.

I find that the First Defendants were not obliged by any statutory provision to install a sprinkler system because, unlike the installation of compartmentalisation or a fire detection system or an interlock that cut the current if the machine jammed, the installation of sprinklers was not something which the HSE or the Fire Authority or their own consultant had even suggested, let alone recommended. Of course, the fire may well not have gone beyond the cutting machine and certainly would not have had any of the devastating effects that it did have, if a sprinkler system had been installed. But that cannot equate to a finding of negligence. It may very well be that, having decided not to install a fire detection system, the First Defendants should then have gone ahead to install a sprinkler system. But, as I have said, having found that the First Defendants were negligent in not installing an automatic fire detection system, I do not believe that the First Defendants were also negligent in failing to install sprinkler system.

For the reasons which I have given, I find that the First Defendants were negligent in respect of the training and safety systems that they provided for their employees; in their failure either to compartmentalise the stored blocks or install an automatic fire detection system; and in the absence of interlocks on the hot wire cutting machine. I am in no doubt that if these things had happened as they should have done, there either would have been no fire at all or the fire would have been confined to the top of the hot wire cutting machine. At paragraph 85 of his closing submissions, Mr Bickford-Smith said that, given these various fundamental failings, Unit D “was an accident waiting to happen”. For the detailed reasons set out above, I accept that submission, and find that this situation was a result of the First Defendants’ breach of duty and/or nuisance.

I should also make it clear that, as noted in paragraphs 94 and 244 above, the First Defendants failed to provide adequate or proper information to the Fire Authority and the HSE in the years prior to the fire. It is quite clear to me from the documents that have been provided by the Fire Authority and the HSE that the First Defendants did not provide full and frank information about their manufacturing processes. They did not carry out or provide written risk assessments. They did not even obtain or provide the sort of monitoring data which their own risk assessment specifically recommended (see paragraph 89 above). These failures amount to a separate reason why I am in no doubt that the First Defendants cannot rely on the decision of the Fire Authority and the HSE in 1999 not to take them to the Magistrates’ Court as evidencing the fulfilment of their duty of care to the Claimants in 2003.

As set out in paragraph 8 above, the Claimants have a secondary negligence claim against the First Defendants. That claim assumes that the start of the fire was beyond the First Defendants’ reasonable control but alleges that the failure on the part of Mr Abbas and others to put the fire out within the confines of the hot wire cutting machine resulted from a failure of training/safety systems which itself represented negligence on the part of the First Defendants and therefore rendered them liable to the Claimants in negligence in any event. The relevant principles are set out in Section C a) ii) (paragraphs 40 and 41) above.

My analysis of the allegations of negligence in Section M above deals with both the commencement of the fire and the failure to deal with, or abate, the fire immediately. I have found that, in relation to both, the First Defendants were negligent. I therefore find that, to the extent that it is a separate claim, the Claimants’ secondary negligence/nuisance claim is also made out. The First Defendants were negligent because their training of Mr Abbas was inadequate, and as a result, he failed to deal with the fire properly at the outset. This was compounded by the failure to protect the stored blocks or install an automatic fire detection system.

The aspect of the case highlighted by the secondary negligence claim is Mr Abbas’ failure to deal with the fire on the hot wire cutting machine. Mr Abbas’ original account of his immediate reactions, as given to Mr Hotchkiss and Mr McKeating, and which I have found to be correct, made it clear that, when he saw that the polystyrene block was on fire, he did not attempt to put the block out with the fire extinguisher that was located close to the hot wire cutting machine. Neither did he shout ‘fire’ or attempt to alert the Polish workers at the other end of the upper floor. Instead, according to Mr Abbas, he went along towards the western end of the upper floor and down the stairs to the lower floor. Effectively, he ran away from the fire. Only later did he return from the lower floor with a fire extinguisher, but by then it was too late.

With hindsight, of course, it is easy to criticise Mr Abbas’ actions on discovery of the fire. However, it seems to me that his reaction was understandable, given the lack of proper training that he had received. He saw a fire and his immediate reaction was to move away from it. Although he returned later, by this time the fire was sufficiently advanced for the Polish workers to have been alerted without any shout from Mr Abbas. I do not believe Mr Abbas could be criticised for his actions. But I do consider that they are again evidence of the First Defendants’ failure to train Mr Abbas both in the use and dangers of the hot wire cutting machine, and the proper response on discovery of a fire.

Accordingly, I find that, if Mr Abbas had been properly trained and instructed, he would either have ensured that the block did not catch fire or, if it did, he would have been able to put it out within a few seconds using the fire extinguisher close by the machine. His failure to do so was not his fault but the fault of the First Defendants and their failure properly to train him. They therefore were responsible for the failure to abate the fire. Accordingly, I consider that the secondary negligence/nuisance claim is made out. If the fire had been put out on or around the hot wire cutting machine, there would have been no damage of any sort to Units B and C.

The support claim by the First Claimants against the First Defendants, arises out of their alleged failure to carry out proper remedial works to the party wall which, as a result of the fire, had been turned into a external wall. The loss was, however, subsumed within the Rylands v Fletcher and the primary and secondary negligence/nuisance claims: in other words, if those claims were successful, this separate head of claim would not need to be considered. Since I have found against the First Defendants in relation to all such claims, it is therefore unnecessary for me to consider the support claim in any detail.

However, I should say that, in my judgment, the First Defendants plainly owed to the Claimants a duty of care to abate the nuisance created by the fire and, in particular, the problems associated with the party wall. The relevant points of principle are set out in Section Cb) (paragraphs 42-46) above. I consider that the First Defendants failed to fulfil this duty to the Claimants. The fact that, two years after the fire, no substantial remedial work has been carried out to the wall demonstrates beyond doubt that the First Defendants are in breach of their duty. Whilst I accept that these things can not be done over night, the correspondence in Bundle 9.14 demonstrates an unjustified lack of urgency on the part of the First Defendants. The First Defendants were able to get their manufacturing business up and running on new premises within a few months. They ought to have evidenced the same urgency in respect of the party wall. Their failure to do so, despite their knowledge of the problems with the wall, amounts to a separate nuisance although, as I have said, the damages that result are likely to be encompassed by the Rylands v Fletcher claim as well as the primary and secondary negligence/nuisance claims analysed above.

On behalf of the Claimants, Mr Bickford-Smith asserts that the Claimants also have claims against the Second, Third, Fourth and Fifth Defendants which arise out of the claims which I have already upheld against the First Defendants. These claims, he says, arise in two ways. First, he says that, since the Second, Third, Fourth and Fifth Defendants were the landlords of the First Defendants, they are liable for the nuisance of their tenants. In the alternative, he also says that these other Defendants, as Directors of the First Defendants, are also liable for that company’s default. In addition, he says that, pursuant to the various deeds, the Second, Third, Fourth and Fifth Defendants are specifically liable for the support claim, due to their failure to carry out remedial works to the party wall.

I have set out at paragraphs 47-50 above the relevant principles which would need to established by the Claimants if they were to succeed in their allegations that the Second, Third, Fourth and Fifth Defendants, as landlords, were liable for the defaults of the First Defendants as their tenants. As I have said, these principles are relevant, not only to the support claim against the Second, Third, Fourth and Fifth Defendants, but to all the claims made by the Claimants, because it is said that their liability, as landlords, covers all the claims were the First Defendants have been found to be liable.

I am satisfied that, on the evidence, the Claimants have not made out any liability on the part of the Second, Third, Fourth and Fifth Defendants as landlords to the First Defendants. The Second, Third, Fourth and Fifth Defendants did not let the premises to the First Defendants for the purposes of any act of nuisance and have not expressly authorised any such nuisance. They have not participated directly in the commission of the nuisance. Furthermore, I do not believe that it is realistic to say that, as landlords, the Second, Third, Fourth and Fifth Defendants could have prevented the nuisance being committed by the First Defendants. I therefore reject that way of putting the support claim, or any of the other claims for which I have already found the First Defendants to be liable, against the other Defendants.

The same conclusion must also apply to the argument that, as directors of the First Defendants, the Second, Third, Fourth and Fifth Defendants were liable for the acts and omissions of the company. Indeed, no real argument was advanced by Mr Bickford-Smith in support of such an analysis. It seems to me to be quite contrary to the basic principles of company law.

The liability of the Second, Third, Fourth and Fifth Defendants to the Second and Third Claimants under the terms of the Deeds is quite a different matter. Here the position is a little complicated by the fact that, as Mr McGee informed me on the last afternoon of the trial, he only represented the First Defendants, meaning that, to my surprise, the Second, Third, Fourth and Fifth Defendants were essentially unrepresented before me. Mr McGee was therefore not in a position to make any representations on their behalf. However, very properly, he indicated to me that, at first sight, the words of the Deeds were clear and that they appeared to impose support obligations on the part of the Second, Third, Fourth and Fifth Defendants.

I respectfully agree with Mr McGee’s indication, although I make it clear that he made (and could make) no concession on the point. On a consideration of the words of the Deeds, it seems clear beyond doubt that the Second, Third, Fourth and Fifth Defendants owed obligations to the Second and Third Claimants in respect of support which, as result of the fire and the failure to carry out proper remedial works to the party wall, have not been fulfilled. The Second, Third, Fourth and Fifth Defendants are therefore in breach of those obligations.

It is convenient here to set out the relevant provisions. Unit B was sold by Henry Lax Limited to the Second Claimants on 22 March 2001. The Deed provided that the Second Claimants’ Unit B would have “the right of support and protection for the Property and Additional Property from the adjoining buildings forming part of the Retained Land”, which meant Unit D.

Unit D was itself transferred by Henry Lax Limited to the First Defendants pursuant to a Deed dated 27 March 1995. At this time, Henry Lax retained Unit C. One effect of this Deed was to provide expressly that the retained Unit C had a right of support from Unit D. Unit C was subsequently transferred to the Third Claimants. Thus, by October 2001, by virtue of the Deeds set out above, the First Defendants, as the owners of Unit D, owed obligations of support to the owners of both Units B and C.

Unit D was transferred by the First Defendants to the Second, Third, Fourth and Fifth Defendants in October 2001. Accordingly, as a result, the support obligations owed to the Second and Third Claimants (as the owners of Units B and C respectively) were likewise transferred to the Second, Third, Fourth and Fifth Defendants.

The damage to the wall between Unit D, on the one hand, and Units B and C on the other, as a result of the fire, and the subsequent failure to carry out the necessary work to the wall, amounted to a clear breach of the support obligations owed by the Second, Third, Fourth and Fifth Defendants. They are therefore liable separately to the Second and Third Claimants for the losses that flow from this default.

I have found that the circumstances of the fire were those described in detail, and on a number of different occasions, by Mr Abbas in the days and weeks immediately following the fire in August 2003. I have rejected Mr Abbas’ more recent and radically different version of events.

I have found that the cause of the fire was a wire breakage on the hot wire cutting machine which created a spark. This was a regular occurrence on machines of this kind. The spark set fire to the polystyrene block on the cutting machine. The fire then spread quickly to the stored polystyrene blocks close to the machine. A fire caused in this way was not only consistent with the version of events from Mr Abbas, but it was also consistent with the physical evidence found by the experts following the fire.

I have rejected the suggestion that the fire was somehow inexplicable. On the contrary, I have found that the fire had a straightforward explanation and that a fire, started in this way, was a not uncommon event at Unit D.

I have found that the fire could probably have been extinguished at or around the hot wire cutting machine. The fact that it was not was due to Mr Abbas’ decision to run away from the machine when he saw the flames coming from the block, without using the nearby extinguisher or shouting for help, and the absence of an automatic fire detection system. I have found that Mr Abbas cannot personally be criticised for his actions: they were the direct result of the First Defendants’ failure to train him properly, both in respect of fire precautions generally, and the proper operation of the hot wire cutting machine in particular.

On the facts that I have found, the First Defendants were strictly liable to the Claimants because the various ingredients of a claim under the rule in Rylands v Fletcher have all been made out. Indeed, it seems to me that this is the sort of case to which, even in its modern, restricted form, the rule should plainly and obviously apply.

If I am wrong about the claim under the rule in Rylands v Fletcher, I am entirely satisfied that the First Defendants fell below the standard of care required of them in these particular circumstances. Therefore liability is made out, in the alternative, pursuant to the Claimants’ primary negligence/nuisance claim. In particular, I find that the First Defendants’ training and safety systems were inadequate; and I find that, following the correspondence with the Fire Authority and the HSE, the First Defendants’ decision neither to compartmentalise the stored blocks nor to put in an automatic fire detection system was wholly unjustified. I also find that the failure to install interlocks on the hot wire cutting machine, contrary to the only risk assessment that the First Defendants themselves ever produced, was also negligent.

I have found that the commencement of the fire was due to the First Defendants’ negligence/nuisance and that, even if I am wrong about that, the failure to put out the fire on or around the hot wire cutting machine was also the result of their negligence/nuisance. Accordingly, the secondary negligence/nuisance claim is also made out.

I consider that, to the extent that it is relevant, the First Defendants were separately liable to the First Claimants in nuisance for failing to carry out proper works to the party wall between Unit D and Units B and C in the two years following the fire.

I reject all the claims to the effect that the Second, Third, Fourth and Fifth Defendants were liable, either as landlords, or directors, for the default of the First Defendants. However I uphold the claim that the Second, Third, Fourth and Fifth Defendants were directly liable to the Second and Third Claimants under the terms of the various Deeds for failing to provide proper support to the party wall, because they have failed to carry out (or have carried out on their behalf) the appropriate remedial works since the fire.

This Judgment has therefore dealt with all matters concerned with liability. All questions of quantification will be dealt with following a separate hearing.