Smith & Ors v South Eastern Power Networks Plc

These five Claims are for damages for negligence said to relate to fires in five sets of premises, all of which started as a result of "resistive heating" emanating in what are called "cut-out assemblies”. Where mains power is brought by cable into premises, it first goes into a cut-out assembly which is in effect a junction box with one or more fuses in it; from that cut-out assembly, cables are then run to the electrical meter, where the amount of electricity consumed in the premises is measured and from where the electricity passes into the premises. Since the privatisation of the electrical industry, responsibility is now divided between distributors (responsible for the bringing of power into premises and for the cut-out assemblies) and the suppliers (who charge the customers for electricity supply and who are responsible for the meters). The five Claims are in the nature of "test cases", albeit that they do not amount to Group litigation, and the overriding general issue relates to the scope and extent in practice of the tortious responsibility of the Defendant distributors, whilst there are also major issues on causation in the five cases. The duty of care owed by the distributors is, properly, admitted. The scope of the dispute involves a determination of what, if anything, the Defendants should have done by way of inspection, maintenance, replacement or monitoring of the cut-out assemblies. The generic liability issues have acquired the acronym “RIMISSE” which stands for "Repair, Installation, Maintenance and Inspection of Supply Side Equipment".

The Court was originally asked to try more than these five cases but for various reasons this trial has been concerned with no more than the five cases. However, there are up to 8 (and possibly more) other cases in which the parties will be extremely interested in the outcome.

I will deal with the facts of each of the five cases in the order in which the Claims were issued. It is common ground that all the fires started in or immediately around the cut-out assemblies as a result of "resistive heating", which results in very high temperatures which then cause ignition of anything which is close by and flammable.

Mr Paul Smith and Mrs Bennington were the freehold owners of 1-3, Queen Street, 1b-1c Park Terrace East, Horsham, West Sussex. The ground floor was leased out as a showroom and workshop whilst the top floor contained three flats. Messrs (Andrew) Smith and Durrant trading as the Horsham Piano Centre ran a business from this property making and selling pianos and were consumers of electricity from what is now South Eastern Power Networks PLC ("South Eastern Power"), the distributor of electricity and, as such, the successor of previous distributors. The cut-out assembly was located in the electrical cupboard to the front of the property on the ground floor.

On 16 February 2007, a meter reader (engaged by South Eastern Power) attended the property to take a reading from the electricity meter but did not note or report any fault or deficiency. At 17:45 hours on the same day, Messrs (Andrew) Smith and Durrant left the property, turning off all the peak rate electrical equipment including lights and the fridge. However there were eight off peak electrical night storage radiators which were drawing electricity.

At approximately 7 am the following morning (17 February 2007), the paperboy noticed fire through the front windows. At 7.09 the Fire Service was called and duly attended, putting out the fire. The property suffered severe fire damage particularly around the electrical cupboard but there was severe smoke damage through the entire ground floor and some smoke contamination of one of the flats.

The fire started in the cut-out assembly but the experts are agreed that it is not clear whether this was in the incoming or outgoing terminal fuse blade connections. The experts do agree that it is likely that there would have been visible evidence to the meter reader of a possible impending conflagration on the day preceding the fire but, if the resistive heating fault had developed at the incoming terminal (on the underside of the cut-out assembly), it would have been obscured from view by the cable box enclosure and visible signs of failure might not have been apparent. The cut-out assembly was probably manufactured sometime before the 1980s.

Mrs Shaheen owned the freehold of 26 Dicey Avenue, London NW2 where she lived with her husband and two children. London Power Networks PLC ("London Power") was the power distributor (or more accurately the statutory successor to the previous organisation with responsibility for power distribution). The electricity supply equipment was located in the study and it housed both London Power’s cut-out assembly and the meter equipment. The cut-out assembly was installed in 1962.

The meter reader (not employed by London Power) visited to read the meter on 13 December 2006. Nothing untoward was noted or reported.

On 26 December 2006 at about 2.55 pm the electricity supply at this property failed. Mrs Shaheen went into the hallway and found that it was filled with smoke emanating from the study. Unsurprisingly she evacuated the property with her daughters and called the Fire Service who arrived at about 3 pm and put out the fire. The fire was caused by resistive heating at the outgoing terminal connection of the cut-out assembly. It is unclear whether or not there would have been visible evidence of any resistive heating fault at the time when the meter reader visited.

Mr and the late Mrs Rice were the owners and occupiers of Sapphire Kennels, Headcorn Road, Sutton Valence, in Kent. The premises comprises two parts, one, a five bedroom detached bungalow, in which they lived and the other part a range of single story outbuildings which comprised the kennels. The bungalow and the kennels had separate supplies of electricity but both supplies were invoiced to a business account and paid for on a business tariff. South Eastern was the power distributor. The meter had been read on 16 April 2006, some seven months before the fire.

On the evening or 4 November 2006 Mr and Mrs Rice were in the bungalow watching television in the living room and at approximately 21.40 they noticed sparks coming from the electrical equipment which was in a unit in the front left-hand corner of the living room; a fire broke out. Although Mr Rice tried to extinguish the fire he was unable to do so and all the occupants were evacuated. The fire brigade arrived and extinguished the fire. There was extensive damage to the bungalow but no damage to the kennels. The fire was caused by resistive heating at the cut-out assembly on the incoming terminal or fuse blade connection. It is unlikely that relevant visible evidence of impending failure would have been apparent to the meter reader some seven months before. It is unclear what the age of the cut-out assembly was albeit it might date back to the 1960s or 1970s.

Mr and Mrs Surtees were the freehold owners and occupiers of residential premises at 44, Withdean Road, Brighton. The electricity equipment was in the garage. South Eastern was the power distributor. There are no service records available to indicate how old the cut-out assembly was but the service cable bringing power in is thought to have been at least 30 years old. On 3 February 2009, a meter reader attended the installation. It is common ground that it is unlikely that visible evidence of any impending problem would have been visible at the time because the failing connection was at the incoming side and damage would most probably have been hidden from view by the cable box enclosure.

On 8 February 2009, early in the morning at about 6.20 am, Mr Surtees noticed fire emanating mostly from that equipment in particular in the vicinity of the cut-out assembly. The fire was caused by resistive heating at the cut-out assembly connection on the incoming terminal or fuse blade connection. There was extensive and substantial damage to the house and the garage.

Mrs Mead is the owner of retail premises at 5, Eld Lane, Colchester, Essex, which were let to Monsoon Holdings Ltd for retail purposes. Eastern Power Networks Plc ("Eastern Power") was the power distributor. There was an electricity supply cupboard within the premises. The cut-out assembly was installed in 1975. The meter was read some six weeks before the fire on 23 September 2004. It is unlikely that visible evidence would have been apparent to the meter reader at that time because the connection which failed ultimately was at the incoming side and any damage would most probably have been hidden from view by the cable box enclosure.

On 13 November 2004 the premises were damaged by fire and the seat of the fire was the electricity supply cupboard within the premises. The fire was caused by a resistive heating fault at the incoming supply termination within the cut-out assembly. The fire caused substantial damage to the electrical cupboard itself, and the surrounding area and the ceiling of the ground floor. The premises could not be used as a retail unit for some time until repairs were carried out.

In respect of each of the five fires, each started in the cut-out assembly as a result of resistive heating. It is common ground that none of the fires was caused by negligent installation of the cut-out assemblies when they were installed. Again, it is common ground that whatever the reasons (which are in issue) the quality of the wiring connections deteriorated since installation such that one part or other of the assemblies suffered a substantial build-up of heat by reason of increasing or increased electrical resistance at those points with the result that the adjacent flammable surfaces or materials caught fire.

The experts in this case are agreed, and I accept, that electricity is conducted to the cut-out assemblies by service cables which vary in terms of the number, size and arrangements of conductors (in practice wires), the conductor material and the insulation system used. The conductors within service cables are made from copper or aluminium and are usually insulated with an outer insulating sheath and some form of armour around the cable. The only protection against a fault on the supply cable is provided by the relevant electricity sub-station fuse which will typically have a much higher rating than the cut-out fuse. The cut-out assembly acts primarily as the termination for the service and almost always contains the fuse protection for the service (namely the fuse or fuses within that assembly).

Cut-out assemblies come in different shapes and sizes, depending largely on the age and rating of the service and whether the consumer is provided with a single phase or three phase supply. The more modern ones are usually encased within glass filled polyester although historically other plastics such as phenolic were used. The oldest service heads have cast iron casings. The assemblies may have pitch or heat shrink plastic shrouding (or neither) within them depending upon the type of service cable to which they are being used to terminate. The very large bulk of cut-out assemblies over the last 50 to 60 years have been manufactured by two companies, Lucy Switchgear and WT Henley although BICC and Pirelli had a not insignificant share at least at one stage.

The outgoing circuits from the cut-out assemblies are usually run in single core double insulated cables known as "tails". The more modern installations will have PVC insulation but some have vulcanised Indian rubber and cotton. The more modern tails typically comprise stranded copper conductors with a cross-sectional area of 25 mm².

The means of securing the conductors of the supply cable and the outgoing tails to the conducting parts of the cut-out assembly varies from design to design. In some cases clamps are used but in the majority of cases the cables are located in tunnels within terminal blocks secured with grub screws.

Cut-out fuses come in varying sizes, typically between 60A and 400A fitted in low voltage services. In small or medium-sized domestic and commercial installations (of the type that relate to the five Claims in these proceedings), the fuses would be rated at between 60A and 100A. The physical size of the fuse will vary depending on its rating and different types of clamp mechanism which may be used. It is generally necessary to be able to withdraw the fuse from the cut-out assembly and the way in which the fuse connections are made varies from design to design. The vast majority of fuse carriers comprise two blades that are push fitted into the fixed terminations of the cut-out assemblies.

It is and was common practice to apply security seals to electricity supply equipment including the cut-out assemblies and meters.

Electricity networks were first developed some 120 years ago as localised street systems but they have evolved to become an interconnected national transmission and distribution network. Until the 1930s, separate private and municipally owned utilities provided electricity in the UK. The Electricity (Supply) Act 1926 sought to minimise the wasteful duplication of resources, in particular with excessive generating plant, by creating an interconnected network.

The Electricity Act 1947 nationalised the large number of existing private and municipal electricity supply undertakings and formed them into 12 Area Boards in England and Wales. In 1990 under the Electricity Act 1989,private companies were created effectively out of the old Boards but they continued for the most part to combine the functions of supplier of electricity with that of distributor (and owner and maintainer of the distribution network) in their areas. The exceptions were some larger commercial customers who had a choice of supplier. This possibility of choice was not extended to all customers until 1998. On 1October 2001 under the Utilities Act 2000 the final step was taken whereby the former Public Electricity Suppliers (“PESs”) were required to separate their functions so that the same entity could not be both a distributor and a supplier of electricity. The Defendants are the successors to those parts of the PESs in their respective areas which confined their activities after 2001 to distribution and became Distribution Network Operators (“DNOs”).

The old Electricity Boards under the 1947 Act continued to be required to conform to regulations made by statutory Electricity Commissioners in 1937. These remained in force until, as a prelude to privatisation, these were replaced by Regulations made under the Energy Act 1983, the Electricity Supply Regulations 1988 SI 1988/1057 which were amended on five occasions, before they were revoked from 31January 2003 and replaced by the Electricity Safety, Quality and Continuity Regulations 2002 SI 2002/2665 (the “ESQCR”).

There is, properly, no issue between the parties that South Eastern Power, London Power and Eastern Power are the statutory successors to the property rights and liabilities in relation to the distribution of power of their statutory predecessors.

The issues in these cases need to be considered against the background of the 1988 Regulations and the ESQCR. Although there are some differences in the wording of the Regulations, for present purposes these are not material as both impose in relation to the Defendants’ works or equipment a duty to prevent danger. Relevant definitions in the ESQCR are:

“1(5) “danger” includes danger to health or danger to life or limb from electric shock, burn, injury or mechanical movement to persons, livestock or domestic animals, or from fire or explosion, attendant upon the generation, transmission, transformation, distribution or use of energy;

“distributor” means a person who owns or operates a network…

“equipment” includes plant, meters, lines, supports, appliances and associated items used or intended to be used for carrying electricity for the purposes of generating, transmitting or distributing energy, or for using or measuring energy;

“meter operator” means a person who installs, maintains or removes metering equipment used for measuring the flow of energy to or from a network at or near the supply terminals;

“network” means an electrical system supplied by one or more sources of voltage and comprising all the conductors and other equipment used to conduct electricity for the purposes of conveying energy from the source or sources of voltage to one or more consumer’s installations, street electrical fixtures, or other networks…

“supplier” means a person who contracts to supply electricity to consumers…”

There is, rightly, no issue but that the Defendants were "distributors” operating "networks", that they were not suppliers or providers or employers of meter operators and that the cut-out assemblies were "equipment" within the “network”, all within the meaning of these Regulations.

Other relevant parts of the ESQCR are:

“3.

—(1) Generators, distributors and meter operators shall ensure that their equipment is—

(a)

sufficient for the purposes for and the circumstances in which it is used; and

(b)

so constructed, installed, protected (both electrically and mechanically), used and maintained as to prevent danger, interference with or interruption of supply, so far as is reasonably practicable.

4.

Generators, distributors, suppliers and meter operators shall—

(a)

disclose such information to each other as might reasonably be required in order to ensure compliance with these Regulations; and

(b)

otherwise co-operate amongst themselves so far as is necessary in order to ensure compliance with these Regulations.

5.

A generator or distributor shall, so far as is reasonably practicable, inspect his network with sufficient frequency so that he is aware of what action he needs to take so as to ensure compliance with these Regulations and, in the case of his substations and overhead lines, shall maintain for a period of not less than 10 years a record of such an inspection including any recommendations arising therefrom.

24.

—(1) A distributor or meter operator shall ensure that each item of his equipment which is on a consumer’s premises but which is not under the control of the consumer (whether forming part of the consumer’s installation or not) is—

(a)

suitable for its purpose;

(b)

installed and, so far as is reasonably practicable, maintained so as to prevent danger; and

(c)

protected by a suitable fusible cut-out or circuit breaker which is situated as close as is reasonably practicable to the supply terminals.”

Although it is, rightly, common ground (having regard to the Supreme Court decision in Morrison Sports Ltd & Ors v Scottish Power [2010] UKSC 37) that these Regulations and their predecessors do not give rise to any claim for breach of statutory duty, they must inform any given case relating to negligence. Thus, where there has been a breach of the Regulations by a given distributor, that does not mean that it was culpably negligent; however, such a breach may point to a breach of the duty of care although in practice evidence which goes beyond the mere breach may well be required to establish negligence. A simple failure consistently to perform or discharge a statutory duty with no reasonable explanation or justification therefor may provide grounds for a claim in negligence. However, a party which owes a statutory duty which it has not discharged may avoid a claim for negligence by showing that even if it had performed the duty with care the events complained of (be it fire, explosion or other calamity) would have occurred.

Ordinary principles of negligence require the existence of a duty of care owed by the relevant defendant to the claimant, a breach of that duty and relevant damage or loss being caused to that claimant by the breach. It is accepted here that a duty of care existed as between the Defendants and the Claimants but breach and causation are denied.

One can also have regard to the maxim that any party which has a statutory duty cannot legally and effectively delegate responsibility for the performance of that duty to a third party. In practice of course, bodies with statutory duties do from time to time sub-contract the performance of that duty to others but they retain responsibility for the due performance of that duty.

Simply considering the Regulations in the context of a duty of care, one can make the following comments:

The obligation to do what is reasonably practicable has attracted the attention of appellate courts over many years. It has had to be considered not only in the context of cases where statutory duties were involved but also where negligence is alleged. Cases involving the Factories Act, the Health and Safety at Work Act 1974 and mining legislation have attracted the most judicial attention. The Supreme Court case of Baker v Quantum Clothing Group Ltd [2011] UKSC 17 involved claims by claimants under the Factories Act and in negligence for hearing loss suffered as a result of exposure to noise levels. That Act laid down a “so far as is reasonably practicable" test. The Court decided the case by a majority with Lords Mance and Dyson giving reasoned judgements and Lord Saville agreeing with them. Lord Mance started at Paragraph 9 by setting out the test for an employer’s liability for common-law negligence as set out by Mr Justice Swanwick in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 at page 1783:

Between Paragraph 62 and 80, he reviewed whether requirements regarding safety in the statute were absolute or relative. He concluded at Paragraph 80, simply as follows:

He then went on to consider the practical meaning of the term "reasonably practicable". One must bear in mind that the onus is on the employer to show that it has done what was reasonably practicable to eliminate or reduce the relevant risk or danger.

“82.

In the light of my conclusion that safety is a relative concept, the correctness of these passages does not strictly arise for consideration in this case. Had it arisen, I would have regarded the qualification as wide enough to allow current general knowledge and standards to be taken into account. Even the Court of Appeal in its formulation acknowledged the quantum of risk involved as material in the balancing exercise. But this can only mean that some degree of risk may be acceptable, and what degree can only depend on current standards. The criteria relevant to reasonable practicability must on any view very largely reflect the criteria relevant to satisfaction of the common law duty to take care. Both require consideration of the nature, gravity and imminence of the risk and its consequences, as well as of the nature and proportionality of the steps by which it might be addressed, and a balancing of the one against the other. Respectable general practice is no more than a factor, having more or less weight according to the circumstances, which may, on any view at common law, guide the court when performing this balancing exercise: see Swanwick and Mustill JJ's statements of principle, set out earlier in this judgment, and also Charlesworth on Negligence (12^th ed) (2010), chapter 7, The Standard of Care, both generally and especially at para 7.38. It would be strange if the Court of Appeal was right in suggesting that, under the statutory formulation, this one factor is irrelevant, when the whole aim of the balancing exercise must, in reality, be to identify what is or is not acceptable at a particular time.”

Lord Dyson provided helpful and supportive observations:

“101 There is no rule of law that a relevant code of practice or other official or regulatory instrument necessarily sets the standard of care for the purpose of the tort of negligence. The classic statements by Swanwick J in Stokes and Mustill J in Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405 which have been quoted by Lord Mance at paras 9 and 10 of his judgment remain good law. What they say about the relevance of the reasonable and prudent employer following a "recognised and general practice" applies equally to following a code of practice which sets out practice that is officially required or recommended. Thus to follow a relevant code of practice or regulatory instrument will often afford a defence to a claim in negligence. But there are circumstances where it does not do so. For example, it may be shown that the code of practice or regulatory instrument is compromised because the standards that it requires have been lowered as a result of heavy lobbying by interested parties; or because it covers a field in which apathy and fatalism has prevailed amongst workers, trade unions, employers and legislators (see per Mustill J in Thompson at pp 419-420); or because the instrument has failed to keep abreast of the latest technology and scientific understanding. But no such circumstances exist here. The Code was the result of careful work by an expert committee. As the judge said, at para 87, the guidance as to the maximum acceptable level was "official and clear". He was entitled to accept the evidence which led him to conclude that it remained the "touchstone of reasonable standards" for the average reasonable and prudent employer at least until the publication of the consultation paper on the 1986 draft Directive (para 48).

111 Like Lord Mance, I prefer the approach of the judge, with the qualification that what is "safe" is an objective question in the sense that safety must be judged by reference to what might reasonably be foreseen by a reasonable and prudent employer. The concept of what is safe is not, however, absolute. As Lord Nicholls and Lord Hobhouse said in R (Junttan Oy) v Bristol Magistrates' Court [2003] UKHL 55…, safety is a relative concept. People can legitimately hold different opinions as to what is safe. Opinions as to what is safe may vary over time as, with developing knowledge, changes occur to the standards that are reasonably expected to be followed. I do not, therefore, agree with Smith LJ (para 78) that what is objectively safe cannot change with time. Standards of safety are influenced by the opinion of the reasonable person and foreseeability of risk plays a part in the forming of that opinion. If reasonable foreseeability is not imported into the concept of safety, then unless the Court of Appeal are right in holding that it is relevant to reasonable practicability, section 29(1) imposes an obligation on employers to guard against dangers of which they cannot reasonably be aware (in so far as it is reasonably practicable to do so). Breach of that obligation exposes the employer to potential criminal liability: see section 155 of the 1961 Act. That is an unreasonable interpretation to place on the statute, which I would not adopt unless compelled to do so by clear words, whether express or necessarily to be implied. In my view, there are no such words.

121 But in my view, the foreseeability of a risk is distinct from the question whether it was "reasonably practicable" to avoid it. Diplock LJ explained the point in Taylor v Coalite at pp 319-320 in the passage quoted by Lord Mance at para 71 above. It is only if a risk is reasonably foreseeable and it was reasonably foreseeable that an injury would be caused that it becomes necessary to consider whether it was reasonably practicable to avert the risk. Thus, for the purpose of deciding the issue of reasonable practicability, it is assumed that the risk was reasonably foreseeable.

122 The importance of the section 14(1) line of cases is that they recognise that the mere fact that a risk of injury is foreseeable as a possibility is not necessarily sufficient to make the machinery "dangerous". It is dangerous only if the risk of injury is sufficiently likely to make it more than a minimal risk: see, for example, the passage in Lord Denning's judgment in Close which I have quoted at para 113 above. I would apply that approach in the present case…

125 I assume that the justification for saying that the statutory duty must differ from the common law duty is that the statutory provisions would otherwise be otiose. But there is no principle of law that a statutory obligation cannot be interpreted as being co-terminous with a common law duty. As Stephenson LJ said in Bux v Slough Metals Ltd [1973] 1 WLR 1358, 1369-1370: "The statutory obligation may exceed the duty at common law or it may fall short of it or it may equal it". Sometimes Parliament may decide that, in the interests of clarity and certainty, there is advantage in providing a detailed all-embracing set of rules. The merit in setting these out in a single authoritative document, such as a statute, is not undermined even if they do no more than reflect what the courts would be likely to decide when applying the common law…

129 On this hypothesis, however, I do not agree with the Court of Appeal that the acceptability of risk is irrelevant to reasonable practicability. I would adopt what Lord Mance says at paras 82 and 83. Smith LJ refers to the "quantum of the risk" as being relevant to whether it is reasonably practicable to eliminate it. I agree. But if the quantum of the risk is relevant to that question, how can the fact that a Code of Practice says that a risk is acceptable not be relevant? As Smith LJ said, the classic exposition of reasonable practicability is to be found in Edwards v National Coal Board [1949] 1 KB 704. Tucker LJ said at p 710: "in every case it is the risk that has to be weighed against the measures necessary to eliminate the risk. The greater the risk, no doubt, the less will be the weight to be given to the factor of cost." If, to use the words of Smith LJ, a responsible or official body has suggested that a particular level of risk is "acceptable", that is likely to be cogent evidence that this level of risk is minimal and one that can reasonably be disregarded.”

One can draw from this decision a number of conclusions which by analogy are applicable in this case, albeit that this case involves consideration only of negligence in the statutory context of the ESQCR:

There was a substantial amount of authority referred to in this context which does not really add very much to the majority judgements in the Baker case.

The Rights of Entry (Gas and Electricity Boards) Act 1954 (referred to in Schedule 6 to the Electricity Act 1989) specifies that rights of entry to premises can only be exercised by bodies such as the Defendants with the consent of the occupier, with a warrant or in emergencies. Paragraph 9 of Schedule 6 permits entry for repair or alterations but this usually requires five days’ notice. Paragraph 7 permits entry for inspection purposes on two days notice.

Allegations of negligent installation having been abandoned, there remained essentially the following breaches of duty pleaded and maintained against the Defendants:

The failure relating to visual or other inspections breaks down into a number of complaints:

In any case based on negligence, as here, it is necessary for the Claimant to establish not only requisite breaches of duty but also that such breaches caused the fires in the five cases. Causation is essentially a matter of fact. It is accepted that if there were such requisite breaches it was reasonably foreseeable that fires would or could break out. There are issues as to the extent to which liability may have been limited or excluded by way of standard terms.

I do not intend to analyse the pleadings in any detail although the requisite ground should be covered by this judgment.

A very large number of witnesses were called by the Defendants and a much smaller number by the Claimants. The Claimants called Messrs Rice (one of the Claimants), French (a meter reader) and Rigden (also a meter reader). It was also accepted that other witnesses whose statements they had put forward were not needed for cross-examination and their evidence was admitted on that basis; these were Mr Slater (a partner of Burgoynes the fire experts brought in to investigate the fire in Horsham (the Smith case)), Mr Rowland (a Senior Associate at Hawkins brought in to investigate the Rice Fire), Mr Reupke (a Principal Associate at Hawkins brought in to investigate the Shaheen fire), Ms Broadhurst (a Senior Associate at Hawkins who investigated the Surtees fire) and Mr Griffiths (an Associate at Burgoynes who investigated the Mead fire).

The Defendants’ witnesses who were actually called were

I found all witnesses to be honest and (at least) reasonably straightforward. However I found Mr Garcia to be an unsatisfactory witness in that I consider that he was defensive and substantially unconvincing in that there were some important matters which were not recorded and which he found himself able to remember and there were key parts of his reports and presentations which I felt, extraordinarily, were not supported by documentation.

The two fire investigation experts, Dr Fletcher and Mr Bourdillon, were both in separate ways impressive. Dr Fletcher comes from a more academic background albeit that he has been involved for many years in the detail and practical investigation of fires and their causes; he was particularly impressive on the research which has been done over the years into cut-outs by bodies and people around the world. Mr Bourdillon is an even more well known expert who is extremely sensible and pragmatic in his approach. I was assisted equally, albeit in different ways, by both of them. Although there were important areas where they disagreed, there were substantial areas where they were able to agree.

The two other experts addressed Reliability Asset Management and Safety (“RAMS”) matters and primarily risk and risk management in relation to cut-outs. Mr Catmur for the Claimants had no experience of the electricity business and, although he tried to be helpful, I found little of what he said useful. Mr Crawford did have experience in the electricity business but I felt that he went substantially beyond the discipline which he was asked to represent as expert; his approach was unnecessarily over complicating, particularly in his approach to risk analysis. In their different ways, I found both of them to be unsatisfactory witnesses and I was not unduly helped by what either of them was able to say other than in the most obvious area of risk analysis and what has been called “Reliability Centred Maintenance” (“RCM”).

The reality is that the Defendants and their predecessors did and do very little themselves in relation to the cut-outs. Their primary functions which they perform themselves are basically as follows

What they do not do, so far as is material to this case, is as follows:

In very broad terms, however, the Defendants’ justification for not doing much in this context is that the cut-outs are in electrical terms basic pieces of equipment with no moving parts with an established track record over many years for maintenance free reliability and safety; this is broadly and correctly accepted. They say that inspections alone will probably not identify any significant number of pending fires, that maintenance in terms of tightening up or rewiring or removing the fuses may cause more trouble than it is worth and that there is little other maintenance if any which would reduce the relatively small incidents of fires in cut-outs. They say that routine or rolling replacement is unnecessary by reason of the essential reliability of the assemblies and in any event they would not need replacement on such a basis every 25 years as many of these pieces of equipment will have lasted for 50 or 60 years or more without incident. So far as inspection is concerned, they are entitled to rely, they say, on the meter readers employed directly or indirectly by the electricity suppliers to notice and report anything visibly and obviously of concern in and around the cut-out assemblies. They point to an infinitesimally small number of deaths from cut-out fires as at least partly justifying their lack of action.

The fire experts have however reached a substantial level of agreement, which I accept:

Although over the years, a number of fires have been caused as a result of resistive heating fault in cut-out assemblies, there has been little if any analysis of why they have occurred. It is possible to identify an almost infinite list of what can cause these resistive heating faults and some of these causes may overlap in a given case. These causes are poor installation in the first place or following rewiring at a later stage, gradual deterioration or degradation, significant atmospheric conditions such as damp, physical impact, interference (deliberate or otherwise) and excessive use of electrical appliances within the property in question,

There is no need to go further than the experts have agreed in relation to the gradual deterioration or degradation of the connection or connections within the cut-out assembly. This is well supported by academic research, let alone by the experts. For instance in a 1968 paper called "Deterioration Processes in Electrical Connectors" by JBP Williamson, the following was stated:

“The principal phenomena involved in the creation of electrical contact had been identified and the process is reasonably well understood. Our knowledge of how connectors deteriorate and ultimately fail, on the other hand, is much less advanced….One reason for our lack of knowledge of this process is of course the electrical connectors deteriorate extremely slowly--lives of many decades are normal. Further, a connector characteristically shows no detectable change for 90% or more of its life, and then fails catastrophically. One possible view is that electrical connectors are intrinsically stable: that failure is not the final stage of a slow continuous deterioration occurs only as the result of some abrupt action, such as mechanical or electrical shock. Clearly such events can, and sometimes do, cause failure, but on the other hand it is known that connectors do eventually fail even in the complete absence of events which could trigger a sudden change."

It is not possible from any of the academic papers which have been submitted in this case or from any other evidence precisely or even within a range of a few years to predict, in the absence of mechanical or physical damage or interference or poor installation, when a carefully installed cut out assembly will fail. The problem is that there are too many variables in any given location. As Mr Bourdillon said, and I accept as logical, there is a range of effective contacts within the connections achieved within the curtilage of a reasonable and careful standard of workmanship and installation. For example, the torque required in tightening the screws or bolts to clamp the cables may be a factor X with a tolerance of plus or minus Y; they may therefore be tightened within tolerance but if one compares three applications one might be perfect (without having to use any of the plus or minus Y), another plus Y and the other minus Y and consequently each over time may perform better or worse and last longer or less than the other. Additionally there may be different temperatures in and around different cut-out assemblies with some in an outside location facing north (and having a lower ambient temperature) compared with one facing south (statistically at least having a higher ambient temperature) or inside either in a centrally heated area or an unheated area. There may be in some buildings much higher use of highly rated electrical equipment (such as in the present case with night storage heaters and a jacuzzi bath in two of the premises concerned).

Having made the above points, I now turn to the individual heads of complaint. I do not need to deal with the allegations of negligent installation because it was conceded by Leading Counsel for the Claimants in opening that no allegations of negligence relating to the installation of the cut-out assemblies in the five properties which are the subject matter of these cases are pursued.

It is rightly accepted by the Claimants that the Defendants operated a good reactive inspection and maintenance regime. However, the Claimants argue that that there ought to have been a proactive regime which should have consisted of biennial and quinquennial inspections. The biennial inspection should have consisted, it is contended, of a number of different elements either alone or possibly in combination:

In summary, the Defendants’ position is that failing to implement such an inspection regime, at any time prior to 2009, was not a breach of the tortious duty because the risk against which such inspection is intended to protect was at all relevant times low, there is no credible engineering evidence to support the effectiveness of any part of such a regime in detecting and/or preventing fires and it would not be reasonably practicable to introduce such a regime.

The first question that needs asking is: why does one need an inspection at all? Apart from the fact that the relevant regulations (ESQCR) require it, the purpose must at the very least be to keep a weather eye on the equipment to see that it is working and that it is not damaged. The evidence simply does not support any general assertion that an inspection on a biennial basis would pick up any substantial number of the resistive heating faults which could have developed. It would simply be chance whether such an inspection happened to be at a time when there were sensory signs of impending failure. There is no credible engineering reason for inspection to take place on a biennial basis, as opposed to at any other interval. The experts agreed that “the purpose of inspections is to identify the symptoms of developing faults before the faults give rise to ignition, thus providing the opportunity to interrupt the development of the fault and normally to replace the cut-out before catastrophic failure occurs”. From Paragraph 5.1 of the fire experts’ Joint Statement “this opportunity only arises in the latter stages in the development of the fault, and the time period associated with that phase in the development of the fault is indeterminate.” In terms of the visual checks, they were also agreed that “inspections carried out at a two yearly frequency (biennially) are only likely to identify a small percentage of failing connections on the basis of odour or outward visual signs.”

Mr. Bourdillon gave evidence that given the simplicity and the robustness of construction of cut-outs, only an opportunistic inspection procedure was wholly appropriate. Dr Fletcher accepted that there was no electrical engineering reason for selecting a two-year interval as opposed to any other period. He acknowledged that it was more a pragmatic point because there is a requirement under the licensing agreement to the electricity suppliers that every two years the supply side equipment is to be looked at in effect by meter readers employed directly or indirectly by such suppliers.

In effect and in practice, the Defendants have relied upon inspections by the meter readers who are employed directly or indirectly by the electricity suppliers. Such examinations are undertaken by the meter readers employed by the suppliers pursuant to the supplier’s obligation under the standard Supply Licence Conditions (“SLC”), Condition 12 (formerly 17).What is however unacceptable statutorily is, given that the ESQCR requires inspections by the distributors (and therefore the Defendants in this case), for the Defendants not themselves ever to inspect the vast majority of cut-outs in their areas.

There is an argument however that Regulation 5 is or is not necessarily engaged because it requires the distributor “so far as is reasonably practicable, [to] inspect his network [including the cut-out] with sufficient frequency so that he is aware of what action he needs to take so as to ensure compliance with these Regulations”. It can not be an answer to this Regulation to say that someone else (meter readers retained directly or indirectly by the electricity suppliers and over whom the distributors have no statutory let alone contractual control) is inspecting the cut-outs, no matter how competently they are doing it. There was no such contractual link here between the Defendants and the electricity suppliers let alone the meter readers. There is however a perfectly valid point that, given the essential reliability of the cut-out, the frequency may be an extended one as it is pointless frequently inspecting something which is essentially sound. A period of time however does need to be selected for the Defendants or someone over whom they have contractual or statutory control to carry out the inspection of the cut-out. However, it can not be said that it is not reasonably practicable to seek to inspect each set of premises to where the distributor has distributed power: there is no physical problem and there is a procedure to seek access. Depending upon the frequency, there is no particular reason why such inspections should be expensive: there was clear evidence in this case that meter readers can readily inspect the meters and cut-outs and up to several hundred a day and possibly more for instance for flats or other multiple occupation premises. It is possible that the statutory inspection regime could be discharged by the distributors contractually retaining the electricity suppliers or the meter reader organisations to inspect the cut-outs.

That said, the above relates to the statutory position. The position may be different in relation to determining whether these Defendants were in breach of their tortious duty of care in failing to inspect cut-outs in premises generally and the five sets of premises with which this trial has been involved. In essence, the Defendants say that they reasonably relied upon the inspections carried out by meter readers because they knew that (currently) meter readers retained directly or indirectly via electricity suppliers do look at the cut-outs when reading the meters. However, their evidence was not consistent. Mr Kay when asked whether the view was taken that it was not reasonably practicable for the Defendants to carry out the inspections because the meter readers were doing broadly what the distributors would otherwise be doing, tellingly said:

“I think to be completely candid, we probably dodged asking ourselves that question too harshly right now whilst the obligations still exist. It is something we have looked at more than once over the years, in working out what do we do, or what is the appropriate thing to do, about managing this large asset base distributed in customers' premises. One of the reasons why I did this investigatory work back in the early eighties was because although the incidence was very, very small, it was a niggle at the back of your mind, does it pass the common sense test of: you're not expecting these things? Why not? But when you look at the practicalities of what we would have to do to detect something that was actually definitely going to give rise to a problem, that seems to be beyond what is currently the possible.”

When then asked whether meter readers were "not much use as investigators or inspectors", he answered:

“I think it suggests two things: it suggests that the phenomena that we are actually looking for are hard to detect; and secondly, that, given that meter reading is a piece work based activity where they are incentivised by numbers done, I think there is a widespread belief that meter readers only provide the most cursory discharge of that activity.”

I heard evidence from a number of witnesses called by the Defendants which suggested that, at least broadly, meter readers receive sufficient training at least to appreciate that when looking at the cut-outs, obvious signs of potential or impending trouble, such as a pungent smell, scorch marks or other signs of overheating, should be looked for. A particular problem however is that the meter readers are or have been not necessarily highly educated or qualified in any way; the evidence suggests that they are on relatively minimal wages, albeit subject to bonuses depending on the number of meters they read in a day or a week. This is a problem because the incentive is clearly to read as many meters in a day as possible; the evidence suggested that meter readers are effectively on bonuses based on the number of meters which they read in a day or a week. Mr Barker gave evidence that, having been out with meter readers, they do not look at the cut-outs "with a lens or anything like that" or do any "in-depth investigation"; they have a "quick look" and that "might only take two or three seconds". This is perhaps unsurprising if, as seems to be the case, meter readers are expected to read some 200 meters a day and possibly more; assuming that they work an eight hour day, that averages 25 per hour which, given the need to walk or travel from one meter to another, to knock on doors and the like, does not leave much time at any one address. Of course, some meters, say in blocks of flats, may all be close to each other. I address meter readers and their training in more detail below.

In the light of particularly Mr Kay’s evidence, which I found telling, I consider that the Defendants were in breach of their duty of care in these cases effectively to institute their own inspection regime. They clearly had not really properly or at all considered the need to institute their own inspection regimes; they had dodged the question of whether to do so and had just made the assumption that very cursory inspections by overworked meter readers employed by others would suffice. I make this finding in effect as one step on the way to seeking to determine whether the Defendants were in breach of the tortious duty as pleaded.

I should emphasise in making this finding that even a biennial inspection might not be required if there was a sensible routine cut-out replacement regime in place, for which see below.

It is however a different issue as to what inspection regime they should have instituted. The case which they have to meet is that there should have been a biennial inspection. Mr Bourdillon said in evidence when asked about the need or desirability for biennial inspections:

“…the way I perceive them…is that given the simplicity and the robustness of construction of cut-outs, an opportunistic inspection procedure in my view is wholly appropriate. My assessment is that biennial inspection happens to be one of the opportunities that are available to DNOs [Distribution Network Operators] and therefore they should take that opportunity to carry out inspections or implement or have implemented inspections at that time but in the philosophy of opportunistic inspections. I don’t read–I don’t envisage that the procedure should be opportunistic inspections and biennial inspections. I perceive that biennial inspection is very much a part of a reasonable inspection programme based on opportunity.”

The selection of the biennial inspection is a pragmatic one because it reflects the existing requirement under electricity suppliers’ licences for them to inspect their equipment (the meter) on a two yearly basis and it is at this inspection as well as on other meter reading outings that the meter readers look at the cut-outs, albeit cursorily.

In the light of both Dr Fletcher’s and Mr Bourdillon’s evidence, I accept that as a matter of the exercise of reasonable care a biennial inspection should have been instituted by these Defendants, as a minimum. Accordingly, the Defendants in breach of their tortious duty failed to implement their own biennial inspection.

However, that does not in itself address what such inspection should have comprised. The first and most obvious is visual inspection. The fire experts agreed that “visible signs of incipient ignition might be apparent for a matter of hours, possibly days but less likely weeks”. It will therefore be a matter of chance as to whether such signs happened to be visible at the time of the two yearly inspection. Coupled with that, there are often difficulties, accepted by the fire experts in this case, in seeing even certain visible signs which are obscured often by the location of the cut-out in question; if the signs are within the casing or between the casing and a relatively close floor, ceiling or wall, they may not actually be visible even on a careful inspection. Additionally, the Claimants have accepted (Response 16 to Further Information in the Smith case) that the visual check would not materially differ from what the meter readers do and which is effectively a quick visual "once over".

Mr French, a meter reader, gave evidence for the Claimants as to what he would do which included a sensory check (which involved identifying if there was a "fishy" smell) and looking at the cut-out to see if there was charring or blackening on or around the cut-out or there were signs of tampering. Essentially, the evidence about the visual inspection was that there was not much to see, just the cut-out, the cables going in and out of it and the backboard on which the cut-out was fixed.

Given the fire experts’ agreement, I am unable to say on a balance of probabilities that even a reasonably careful visual inspection would have revealed any signs which would have put a careful inspector of cut-outs on notice that there was any or any impending problem. In the Rice, Surtees and Mead cases, it is common ground that it is unlikely that visible evidence of any impending problem would have been visible at the time of inspection because the failing connection was at the incoming side and damage would most probably have been hidden from view by the cable box enclosure. In the other two cases, Smith and Shaheen, the experts are unable to say whether the failing connection was on the incoming or outgoing side and therefore I can not find on a balance of probabilities that there would have been visible evidence of any impending problem.

The Claimants’ case as originally pleaded was that “…a “finger tip test” of simply touching the Equipment…would reveal any areas of excessive heating of the equipment and accordingly reveal any resistive heating fault.” The finger tip test was said by the Claimants to involve either actually putting a finger or part of the hand onto the cut-out or putting it close so that one could feel any radiant heat. One of the problems for the Claimants is that there would or could realistically only be evidence of a potential resistive heating fault once the temperature got above 65°C. The evidence was that it would not be safe to touch a cut-out which was that hot and one could not expect an inspector or meter reader therefore to risk burning himself or herself. As for holding the hand or finger close to the cut-out, the problem is then that what to one person may seem (radiantly) hot is not to another and so this check is very subjective.

Dr Fletcher under cross-examination, honestly, accepted that any check which involves actual touching would not be appropriate. He also accepted that it would not be possible to train or teach meter readers or by analogy comparable inspectors to determine by a finger tip test what to look for. It follows that a careful regime of visual inspection would not have required the inspectors to adopt a finger tip test, either as pleaded or by holding a finger or hand at some distance away from the cut-out.

The next allegation relates to the deployment of temperature indicator strips. These essentially paper based strips which have on them a facility to identify (not unlike by analogy litmus paper) when a particular temperature is reached. Some types of temperature strip also have a number of temperature points so, for instance, they might have 50°C, 70°C and 90°C; an inspector could see then that one or other or all had been activated. The temperature strips therefore will alert the inspector at some stage that the requisite temperatures have been reached, although they will not identify when the particular temperature was reached. Temperature strips did represent established technology in that they have and had been used by distributors on much larger equipment, for instance upon switchgear where they have been used since 1986.

In 2005 with funding approved by Ofgem, UK Power Networks (Operations) Ltd embarked upon testing temperature strips on cut-outs. It retained Tyco Electronics UK Ltd ("Tyco”) who had good testing facilities to carry out this test. Mr Collis was one of those responsible for setting this project up. In the Project Inception Request Form in early 2006 he indicated that EDF Energy had suffered equipment failures in domestic cut-outs and that there had been over 200 cut-out fires per year. The quantifiable benefits were said to be a "reduction in claims due to fire or heat damage [which] put our customers at risk and cause financial loss in both to them and EDF Energy due to insurance" claims financial savings of £2.76 million were identified.

Mr Johnson of Tyco gave some evidence as the Laboratory Test Manager within its Energy Division. The testing was to be done in three stages with the first being to identify the normal running temperatures of cut-outs, the second to identify appropriate temperature sensors and their temperature and the third to identify the failure point at which temperature sensors operate. The testing clearly took some time to set up and there seems to have been little urgency on the part of anyone. However the testing was undertaken between May and November 2007. Originally it was supervised by Mr Williams and later Mr Garcia.

Tyco produced a report in November 2007. They tested different cut-outs manufactured by Lucy and Henley. The test essentially showed that the use of temperature strips was possible and worked, although there was some practical difficulty in achieving sufficiently high temperatures in effect to activate the temperature strips; what had to be done was to undo the pinching screws bolted on to the conductors to create a bad contact. It was said that the "stickers (temperature sensors) are very accurate and react very quickly to the increase of temperature".

The monitoring of this project was at best somewhat confused. Some of this confusion, principally through Mr Garcia, was that he was not very good at using the relevant computer reporting template. Initially, he recommended the deployment of temperature strips, albeit that he suggested initially a pilot deployment. He recorded that Tyco had recommended the most suitable strip for the task and identified the most suitable position to place it on the cut-out. He highlighted that meter readers were best placed to report back if the sensor indicated a high temperature reading alerting relevant people to investigate the causes. A later iteration of the reports said that "it could take 5-10 years to obtain 70-80% coverage and deployment of this IFI project, depending on the resources EDF commits to it”, going on to repeat that meter readers would be best placed to take readings once the strips have been deployed, although "meter readers do not always have access to dwellings and therefore this method might prove to be very much a hit and miss method of deployment and monitoring". However in this iteration of the report he suggested that "we should wait for smart metering to be implemented prior to the deployment” saying that smart metering could be used in conjunction with an electronic temperature sensor and could be programmed to send a warning message if the electronic sensor has picked up a high temperature reading for the Cut-out which exceeds a prescribed temperature". The conclusion therefore seems to have been that it was a good idea but given the "hit and miss" problem of meter readers not always being able to gain access it would be better to wait until smart metering was adopted. Smart metering involves the electronic recording and reporting of electricity usage without the need for meter readers physically to attend.

Mr Higginson who had an important role to play was worried that temperature strips only last two years and that the time period between some form of intervention and the fire is often a short period of time. He identified this short period between overheating and the outbreak of fire as 10 days by reference to another case involving a fire in Canterbury between the overheating and the breakout of the fire. He was concerned that because meter readers sometimes only gain access every two years any attempt to read every six months meant the use of temperature strips was limited. It was broadly for these reasons that this project got no further, with the decision being taken in about 2008.

There are however insurmountable hurdles in the Claimants’ case on breach of duty with regard to the deployment of temperature strips. Essentially there are two complaints, first that temperature strips were not deployed and secondly that the Defendants failed to pursue sufficient or appropriate research and develop enquiries into the use of temperature strips from 1985 onwards.

The first hurdle is that there is no or little evidence that temperature strips would be of any effective use in identifying resistive heating faults on domestic cut-outs, even though it is clear from the Tyco project, that temperature indicator strips can physically be applied to cut-outs easily, remaining in situ on that equipment and operate as they are intended to by recording when the temperature at which the strip is set to operate is reached. However the Claimants, their insurers and expert have not carried out their own research and testing to demonstrate that the strips would assist in detecting resistive heating faults at a time sufficiently before ultimate failure in the form of fire to be of any benefit. It is said that there was simply not enough time to do such research and testing.

The key difficulty with the use of temperature strips is in identifying an objective temperature from which one can determine that a cut-out might fail, that is the temperature which triggers the temperature strip, as it is common ground that the temperature on the surface of the cut-out would be affected by, for instance, the ambient temperature and the load being drawn. It was submitted in the Defendants’ Counsels’ Opening Note that it was clear from Dr. Fletcher’s report that there was no such objective absolute temperature. This was borne out by Dr. Fletcher’s oral evidence. It is largely to do with what the ambient temperature is in the millions of different locations where cut-outs are located and the changes in the ambient temperature throughout the year together with the immediate local conditions (for instance with heating or air conditioning on or off). There is therefore a logistic problem in deciding upon what temperature strips with what trigger temperatures are to be deployed in every one of millions of locations.

It might be thought that experts generally or even the ones in this case could identify one or more absolute or relative trigger temperatures from which one could sensibly deduce that a warning point had been reached. Reference to the relevant British Standard does produce a figure of 25°C above ambient but, as Dr Fletcher accepted, no effective tests in this context have been done either for the purpose of this case or otherwise. The same goes for different trigger temperatures for different parts of the different cut-out assemblies which exist because it is accepted that the temperature may be different at different locations within any given cut-out. Mr Bourdillon accepted that there is no coherent single temperature which could be usefully adopted but that, as the experts had broadly agreed, the differential temperature between the two separate parts of a cut-out would provide a more reliable indicator. He went on to say that each and every way one looks at the problem, it is not possible to define a temperature, whether in absolute or comparative terms which would be effective in identifying reliable incipient faults, in a timely manner such that one would avoid the subsequent outbreak of fires.

The major problem is the utility of temperature strips in the context of when the significant overheating which leads to the fire starts could be measured by the strips. There is no doubt that the resistive heating fault eventually causes such overheating that, if there is something flammable close by like a backboard, a fire starts or may start. Whilst the experts broadly agree that the visible signs of impending problems (smell, charring and the like) will only be noticeable at most a few days before the fire, they do not agree as to over what period resistive heating faults could be picked up by temperature strips or other measurement or observation devices. Broadly Mr Bourdillon is of the view of that this is likely to be also within a very short period of time before the fire (measurable in days) and Dr Fletcher believes that it would be a longer period. The difficulty however is that no one, either within the Defendants, Dr Fletcher or anyone else has apparently done any or much research on this key issue. A particular passage in the evidence of Dr Fletcher is illuminating in this regard relating to temperature strips:

“Q. And I want to know what tests have to be undertaken to demonstrate that these work and then my second question after that was why haven’t you done them or asked for time to do them.

A…I think the Tyco tests insofar as they did do establish in principle that the temperature strips work, that is to say they measure the temperature of the surface of the cut-out, which is in a sense to be expected. The main element of those tests that was missing is the rate at which the connection fails and the temperature increases.

MR JUSTICE AKENHEAD: And you need that to determine at which point the use of temperature strips are efficacious.

A. Exactly.

MR JUSTICE AKENHEAD: So, if they only show up 24 hours before the fire, well, they are not worth a candle. A. No

MR JUSTICE AKENHEAD: But if they show up six months before the fire or three months before the fire, or two years before the fire at the outside, then they have a value.

A. Exactly

MR JUSTICE AKENHEAD: Is that really your point?

A. That’s my point.

MR JUSTICE AKENHEAD: So, therefore, I think you have been moving on parallel lines here. You’re basically satisfied from your own knowledge and from Tyco that the temperature strips work and they can be attached on these different types of cut-out generally but what you can’t tell from Tyco is at what stage in the life cycle of the cut-out they are going to cut in, so to speak, they are going to change colour?

A. That’s correct, my Lord, yes.

MR JUSTICE AKENHEAD: And it is that series of tests, the life cycle tests, if you like, and at what point the resistance that is building up starts to show a significant increase in heat, at what point in the life cycle that actually starts to show. Is it just before the failure? Is it a week, a day, two weeks, is it six months, nine months?

A. Exactly, yes.

MR JUSTICE AKENHEAD: And you don’t know and you can’t help me on that as to when it’s likely to come up?

A. No, I can’t, no.

MR JUSTICE AKENHEAD: And there is no data that you have seen from disclosure, as I understand it, from the defendants which helps you on that?

A.

No, there isn’t.”

Nobody has therefore done the requisite research which would help this Court to determine whether temperature strips are ultimately efficacious. They would only be efficacious if resistive heating faults arose well before the heat got to a stage when it caught fire. As Dr Fletcher himself accepted, temperature strips are "not worth the candle" (to use a possibly inappropriate metaphor) if they are only going to work in a very short period before the fire starts with the simple reason statistically the chance of an occasional inspector (say once every two years) picking up the appropriate indication from the temperature strip that a potentially dangerous temperature has been reached are very low. Whilst I suspect that it is not beyond the wit of scientists and engineers to determine when in broad terms significant resistive heating has commenced in cut-outs and that this may well be more than a few hours or days before the fires break out, judicial suspicion is insufficient to found any factual finding based on the balance of probabilities.

When one couples the above with the fact that there are no academic papers that consider the use of temperature strips on domestic cut-outs, that there is no evidence that they are or have been used in any other country in the world and that no other distributor has even conducted similar testing to the Tyco project, the Claimants have simply not been able to prove that it was a breach of duty on the part of the Defendants not to have deployed temperature strips on cut-outs throughout their areas or at all.

I turn now to TICs. The Claimants plead that it was a breach of duty that there was no check regularly deployed using a TIC for the purpose of detecting internal hotspots suggestive of resistive heating faults. There is no doubt that the TIC technology does enable the viewer to photograph or see hotspots within or on the surface of an enclosure such as a cut-out. Dr Fletcher was unaware of the use of TICs being used as a matter of routine in this context by any other power authority in the civilised world or of any papers which recommended TICs for this application. He then, quite properly, answered "No" to the question "do you treat the fact that these defendants did not use thermal imaging on a routine basis between 2004 and 2009 as a criticism of them”. The problem with TICs is at least in part the same as that for the temperature strips in that, unless one uses them, say once a week on each cut-out in the country, the chances of picking up the fact that a cut-out is heating up dangerously may well be missed. It therefore follows, leaving aside what would be a very substantial cost of acquiring, maintaining and deploying what would be thousands of TICs and operators (which would not be justified in the light of their very limited utility), it has not been established that there was any breach of duty on the part of the Defendants in not deploying TICs.

As for the Claimants’ case that quinquennial investigations should have been introduced, it is alleged that every five years the fuse should be removed from the cut-out assembly and then the cut-out assembly be examined “to check for signs of defect or degradation therein (including oxidation, signs of overheating such as oxidation discolouration, insulation damage or distortion of parts).” The Claimants’ pleaded case is that removal of the fuse would “make it easier to see signs of overheating, degradation and so forth caused by the poor connection”. As for it being an inspection every five years, this was explained in opening by Mr Kent QC:

“Five years, of course, does not appear in the regulations but some standards on which we rely, which do not directly relate to this equipment but which relate to consumer equipment, suggest in certain contexts a five-yearly inspection and testing and we say that is by analogy a useful period. The distributor company cannot surely have a lower obligation, less onerous obligation, than one would impose upon the owner of the private network or a consumer. I say “an obligation”; I mean a standard to meet…”

In this context, the Claimants referred to and relied upon Table 3.2 of the Guidanceon the IEE Wiring Regulations (BS7671) although the fire experts (rightly) agreed that these regulations specifically exclude supplier's equipment, such as cut-outs, from their scope. Dr. Fletcher would not “not advocate the direct application of this British Standard to the Defendants' equipment on consumer's premises but simply that it should be considered as a source of good practice.” Even if one did have regard to the Guidance or the Regulations themselves, the suggested five-year period is subject to discretionary increase or decrease by the person carrying out inspections and testing. It does not provide useful guidance in determining an appropriate maintenance regime for equipment. It does not suggest anything other than a sample checking which would fall short of checking each and every part of each installation, even assuming that it was applicable to the Defendants.

One of the possible problems of an intrusive, as opposed to a visual, inspection is the risk, as accepted by Dr Fletcher, that the very activity involved in such an inspection might increase the probability of subsequent failure of the cut-out. Although Mr Bourdillon said otherwise, I do not however consider on the evidence that this would materially increase such probability because the casing is intended to be removed from time to time and the act of taking out and inserting the cut-out fuse if done with reasonable care, say 20 times in the life of a cut-out, should not materially lead to failure; obviously the simple act of removing and replacing the cover of the cut-out should not affect matters.

It is also unclear on the evidence precisely what a quinquennial inspection would have revealed that a biennial inspection would not have. It is possible but not probable that some degradation might be visible but it would be difficult even for a trained electrician to spot whether the degradation, such as oxidation, had got to the stage at which it might be considered as meriting attention.

Dr Fletcher effectively conceded in cross examination that there was no criticism as such to be made of the Defendant for not instituting a quinquennial inspection regime. In those circumstances, I can not find that there was any breach of the duty of care in that regard.

I move on to the final main area of complaint which is the absence of any regime for the replacement of all cut-outs after 25 years in service. It is clear that the Defendants, and particularly their predecessors, had no adequate system of recording the type of cut-outs installed and the date of installation. Matters may have improved in this regard over the last few years but that would not assist people such as the Claimants whose cut-outs were much older than that.

There is no dispute and substantial evidence that cut-outs in this country do generally last a very long time. The evidence indicated that there are numerous cut-outs which are still apparently safely working after 40 to even 60 years or more. Indeed Mr Higginson said in evidence that most cut-outs were installed between 1936 and 1960. Dr Fletcher in evidence accepted thatthere should be a replacement programme but said that the “replacement programme needed to be based on a number of areas of research”. He accepted that this could result in a replacement period of anything between 20 and 50 years and that he had not formulated a view as to whether it would be anywhere within even such a range. He accepted by reference to such academic papers as there are and specifically by reference to the Williamson paper that the period could be longer at least for premises such as those with which this case is concerned.

There was reliance by the Claimants (more before the beginning than at the end of the evidence) on the "design life" said to have been quoted by Lucy and Henley, the two main manufacturers of cut-outs. There was some initially confusing evidence about this. However, particularly Mr Brown of Henley explained what was meant by a reference to 25 years design life which was primarily the period for which the companies having produced a design are prepared to continue to support it, in terms of the provision of spares and the like. It does not mean that cut-outs need to be replaced after 25 years as they will generally continue to be serviceable and useful. I accept particularly his evidence in this regard and little weight can be attached to a quoted "design life", in the context of this case.

Dr Fletcher’s evidence of what further research and testing should have been instituted was relatively vestigial. There was little or no attention to this aspect of the matter in his reports but under cross-examination he suggested that,if he was doing the tests, the British Standards cyclic loading test on cut-outs was “probably a good start” running with a substantial sample of cut-outs being tested to failure, essentially, with numerous observations to determine how and when the connections were degrading with time. The problem with this evidence in these general terms is that he did not put it forward on the basis that the Defendants were to be criticised for not implementing such tests and it is therefore difficult for this Court to determine therefore that there was any breach of duty in this regard. Although this comment veers into the causation issues, it is unclear what precisely such tests would reveal. The cyclic loading tests would observe the impacts of electrical load on the connections and they would be accelerated type loading tests over several years. What they would do is simulate various typical load regimes on the cut-out connections and seek to equate through the accelerated mode of test what, say, 25 to 50 years worth of loading would do to the connection. It would not necessarily reveal what oxidation or other types of corrosive deterioration would do to the connections. It is difficult therefore for this Court to find save in the most general terms that the Defendants were in breach of duty for failing to institute at some stage prior to these fires some research programme in circumstances in which the Claimants expert has not been able to articulate with any vigour what such tests should have entailed or revealed.

What his evidence did highlight, which I accept, is that there can be no doubt (and I find) that cut-outs, and particularly those which have been installed with reasonable care initially, will degrade in time and will need replacement, preferably before they cause a fire in the premises in which they are installed. There is obviously an issue as to when the degradation will reach a stage at which the relevant cut-out needs to be replaced.

The engineering experts agreed that there are mechanisms such as oxidation, corrosion, creep, stress relaxation and fretting that have been identified by researchers and others as the cause of age-related increasing resistance and that such mechanisms potentially affect all connections to varying degrees and could cause a gradual increase in resistance.The fire experts agree that most of these gradual degradation mechanisms are temperature dependent and obviously some are environmental. They accepted generally that resistive heating faults can develop over a long period of time, that the rate of increasing resistance (and therefore development of the fault) accelerates during the latter stages of failure and that it is to be expected that the visible symptoms of the developing fault which are mainly caused by heat, would only be apparent during this latter stage. Thus they accept discolouration and other signs of degradation visible adjacent to the failing connection are usually associated with incipient ignition. I accept this evidence as wholly logical.

Mr Bourdillon denied the practical significance of these effects. For instance in relation to the effect of oxidation, he believed that there was no "engineering basis for suggesting that such a mechanism is a significant factor in the failure mode" and that "all the ideal maintenance in the world will not be able to detect this because it is not visible" and "it is really very difficult to quantify". However, although put forward on an intelligible pragmatic basis, the deterioration process is not primarily an engineering issue; it is more a chemical issue (as suggested in the Williamson paper) which involves the determination of when oxidation of the copper or aluminium metals involved will produce an inadequate electrical contact. He described himself as "agnostic" as opposed to "atheistic" in relation to the gradual degradation theory.

I prefer Dr Fletcher’s evidence on this point. His view is supported by theoretical and experimental research, in particular the Williamson paper and a paper from the Leningrad Branch of the Institute of Machine Sciences. The latter paper concluded that "the main cause for increased contact resistance [within electrical connections] is reduction of the a-spot average radius caused by the diffusion of oxygen into the contact spot”, a-spots being "small metal to metal welds in the only conducting parts for the transfer of electrical current". The paper was based on studies and experimentation over five years or so and on a coherent description of the behaviour of electrical connections at the microscopic level as a result of oxidation and the movement of their un-oxidised clean metal surfaces away from each other. The Williamson paper also shows that the time to failure is longer for a lower current taken. However a higher starting point for the assumed resistance brings forward the end date for failure. As in reality a connector will be subject to varying currents throughout its life the cyclical loading ought to explain a faster rate of degradation than the Williamson model even at lower average loads and thus reduce the time to ultimate failure. However it will always be measured in a substantial number of years. What seems to be clear is that the resistance will be climbing for some time before the very high temperatures (250°C to 350°C) required to produce burning are reached.

It is common ground that the deterioration of the connection will lead to an increase in its resistance, causing an increase in temperature. Additional load or power usage will cause some increase in temperature depending on its amount and increases in temperature in or on the cut-out will also lead to an increase in resistance. Although some average (relatively low) figures for power usage were put forward by the Defendants, that averaging disguises (not deliberately) a wide range of power usage within the 8 million premises which have cut-outs within the Defendants’ regions. Even if the Defendants can not be criticised for not knowing with any precision what electrical apparatus is housed within any given premises, they must be aware that there can be and they can reasonably foresee a relatively wide range of power usage.

There is very clear evidence which I accept that cut-outs will in time degrade to a point at which they need to be replaced before the fire is caused. What is missing is evidence which demonstrates clearly and to a balance of probabilities level when it would be prudent for distributors such as the Defendants to replace the cut-outs on a routine basis. There has been a lot of evidence in the case and argument from the Claimants that the effluxion of a "minimum operational life" basis of replacement represents a prudent stage. However, on the evidence I can not accept that this is the earliest stage at which it would be imprudent not to replace. The evidence does not establish and business and engineering commonsense does not support the proposition that it would be imprudent or negligent of a manufacturer of, say, cars or the Defendants in this case not to replace at that stage. The cut-outs have in general terms been proved to last safely in the vast majority of cases for many years beyond the minimum operational life of 25 years to which some of the witnesses referred.

In my judgement, the Defendants are broadly in breach of their duty of care for failing to have in place any regime for the replacement of cut-outs. They have no regime and never have had. Given that a system involving the use of temperature strips, TICs or frequent inspections has not been established as being required at least to discharge a duty of care, there is little else other than routine replacement which would provide a level of protection to the customers and users of the 8 million sets of premises within the Defendants’ curtilages. A number of senior witnesses for the Defendants accepted that all that will ever prompt them in the future to introduce such a regime is if there is a noticeable and statistically significant increase or "hike” in the number of fires caused by cut-outs. However, that may well be too late if the increase in fires leads to injuries, deaths or a large number of damaged or destroyed premises. None of the Defendants or their predecessors have carried out any research or tried to put themselves in the position in which they can even determine from their records what the age and types of cut-out there are in the 8 million premises to which they provide power.

It is said that routinely replacing cut-outs would introduce “infant failures”. This slightly inapt expression relates to the fact that on new installations there are some failures in effect because human error is such that there will be some connections inadequately made. It is therefore said in effect that it is more or equally risky to replace on a routine basis rather than do nothing. However, no information has been obtained or analysed as to the actual number of infant failures, and if or when they are outnumbered by “mature” failures or failures of cut-outs after many years in service. Mr Kay suggested in evidence and I accept that forming a connection with a cut-out in the first place was a very simple operation: the only reason he could give for errors was the operative becoming distracted or careless. There is some evidence (Schlumberger Sema: LV Service Terminations management of safety related risks document) which suggests in any event that the record data is “known to include a small proportion of infant failures”; this suggests that the "infant mortality" is statistically insignificant.

The Defendants have strenuously argued that, given the numbers of cut-outs concerned, a replacement programme would be unduly burdensome, primarily in terms of cost (with figures of £3-4 billion being quoted). The efficacy of the quoted figures is somewhat suspect in that one would not expect all current cut-outs to have been replaced all in one go or even in one year; the introduction of a replacement regime could legitimately and prudently have been on a rolling basis. Furthermore in the light of my finding below, the replacement programme would be probably related not to a 25 year term but to a longer one.

However, the Claimants have failed to establish that the Defendants were in breach of duty for failing to institute a regime of cut-out replacement every 25 years. This is essentially their allegation and it has not been established. The evidence, if anything, suggests (although sensible research might reveal otherwise) that the period for routine replacement would be substantially more than 25 years.

The Claimants’ allegations of negligence fall into two categories involving data relating to the occurrence of incidents and to the nature of the asset. In respect of the first, it is alleged that the Defendants were negligent in failing to collate adequate data in relation to instances of cut-out overheating, fires and near misses and to analyse, properly or at all, such data as was available to them. The first part involves allegations that the Defendants thereby failed to assemble data sufficient to enable them to identify installations which were particularly at risk of fire or other incident owing to a resistive heating fault. Had such data been collated and/or properly analysed they allege that the Defendants would and/or should have concluded that each of the properties, save for that of Mr. and Mrs. Mead, were at a greater risk of a resistive heating fault than other properties. This was referred to by the Defendants as “the vulnerable properties case”. The second part (termed “the asset register case”) is, as pleaded that the Defendants failed to collate, analyse and organise any or any sufficient data as to the assets they owned, in particular as to the type and/or age of the cut-out and that they did not therefore consider the occurrence of incidents against a proper asset register and did not therefore institute an inspection and/or maintenance regime sensitive to and concentrated upon equipment which, in light of that data analysis, would most likely have been the cause of a resistive heating fault.

A major problem on causation is that the Claimants plead that it is not possible to show what the Defendants ought to have done in respect of the cut-outs had the relevant information been obtained and analysed. However they invite the Court to infer that had that information been available an inspection and maintenance regime would have been put into place which would have prevented the fires.

There clearly was at all material times a very substantial amount of data retained and collated by the Defendants or their predecessors in relation to the assets which they owned from time to time. What there was not was any record, generally, of what cut-outs had been installed and when. No particular thought seems to have been given over the years to the commonsense and desirability of recording the same. Certainly, there would have been little or no practical difficulty in the power distributors recording this information; for instance, “23 Acacia Avenue, Billericay: Henley Model X January 1975". This would have been a sensible and prudent record to have kept, for instance just in case a particular type of cut-out had to be recalled by the manufacturer or was prone to failure.

Some data was maintained by the Defendants in relation to what incidents there were attributable to cut-outs, including fires. Much of that information was made available during the proceedings in these cases and, for instance, it identified over the last 10 years or so, the fires or incidents possibly short of a fire which were addressed or picked up. In that context, the Defendants’ method of filing involves logging these incidents primarily or only if the fire brigade was called or if there was always thought to be a risk of a claim being made. I could not say on the evidence that this method of identifying such incidents was a negligent way of going about things.

It is not necessary to spend much of this judgment dealing with the "vulnerable properties case" because it was not pursued in closing with any vigour, if at all. It was based on an assertion that in effect the Defendant should have taken steps to identify the nature of the load generally being drawn off by the users or owners of premises and the presence and usage of particular items of electrical equipment in place at the relevant properties. Its relevance here is that in two cases there were substantial loads of electricity being drawn to service night storage heaters in one case and a jacuzzi in another. However, there was no ready or easy way for the Defendants to determine what the power used actually was. The power suppliers, whose meter readers determine how much electricity has been used in a given preceding period, might be able to discern some possibly large or excessive amounts of electricity being used but that could be attributable to the occupiers mistakenly having left on, say, a 1 kW heater for an excessive period or left a number of lights on for three months whilst they were away. The Defendants have limited rights of access in any event and would generally not be entitled to "snoop" around people's homes and businesses checking out what electrical equipment they had. There was a lot of discussion on the reports and to some extent in the evidence about the presence of a second distribution board in the electrical cupboard which might suggest that additional substantial electrical equipment is being used in the property. However, Dr Fletcher accepted that the mere presence of a second distribution board was not indicative of any greater vulnerability to a resistive heating fault.

In my judgement the "vulnerable properties case" is simply not made out on the balance of probabilities. It was not a breach of a duty of care not to keep comprehensible and comprehensive data about what electrical equipment there was in any given property.

I therefore find only within the "asset register case" that it was on the part of the Defendants imprudent and a breach of the duty of care owed to owners and occupiers of premises within the curtilages of the Defendants not to have maintained records in relation to at least the type and the date of installation of the cut-outs.

This is, as the Defendants’ Counsel have pragmatically pointed out in their closing submissions, only of relevance in relation to the routine replacement allegations, which I had addressed above. The Defendants seek to justify their case with regard to no routine replacement of cut-outs by reference to the numbers of overheating incidents affecting cut-outs occurring and likely to occur through Mr Stapleton’s “ICMS data”. This produces an 85.9 yearly average figure for cut-out fire incidents but this data was only produced for the purpose of seeking to defend the present claims. It is clear, and I find, no-one had looked into the incidence of resistive heating faults causing fires. The Defendants only produced and analysed for the purposes of this trial statistics going back no further than 2003 (and 2000 for AIRline data for two of the networks). There is accordingly no evidence as to whether the incidence of these fires is or was increasing, notwithstanding the acceptance of certain of the Defendants’ witnesses (for instance Mr Higginson) that if such increase were to be noted it would be a matter of concern. Mr Dallas gave some evidence under cross-examination which demonstrated that there was no material policy in place within the Defendants’ organisations to review statistics or experiences of fault in relation to cut-outs; it would be a matter of chance whether anyone noticed and looked into a rise in the number of faults. There is certainly no evidence that anyone within the Defendants’ or their predecessors’ organisations carried out any such review and indeed a number of witnesses confirmed that no analysis whatever had been made of the statistics by the Defendants in order to discern whether there was a developing problem. This is perhaps not surprising because the data did not contain anything about the age of the cut-out installation.

It is clear that the Defendants produced the statistics to seek to justify in effect their doing nothing except on an "opportunistic" basis themselves to inspect or replace or repair cut-outs. I would be very cautious of the statistics in themselves. There was clear evidence that not all the cut-out fire incidents were in fact logged in, for instance in relation to what were called the "Hobbs fires" in East Sussex and there were some evidence that the records do not identify or necessarily differentiate between the causes of fires; for instance, there was some evidence that some of the logged incidents related to tampering. Again as Mr Stapleton said, the 85.9 yearly average figure did not necessarily or at all cover cases where there was "just a bang and a puff of smoke and the cut-out fails and needs replacing". Therefore if a customer or meter reader reported a bad smell in the area of the cut-out or some apparent scorching mark on the backboard behind the cut-out, that would not be within the figure because it would not have reached the stage which involved the fire brigade being called or there being a claim. The limited data from the ICMS between 2003 and 2010 is insufficient to indicate any possible trend: even for that period of eight years as it provides too small a sample and there is too much variation each year for any trend or lack of trend to be observed.

I therefore do not consider that the data produced by the Defendants for the purposes of this case justified their doing nothing in terms of implementing a routine replacement policy.

The Claimants essentially complain that the Defendants were negligent in failing to undertake any or any proper supervision, review or monitoring of the work of the meter readers to satisfy themselves that the Defendants’ equipment was visually inspected properly for signs of overheating and to then implement such training and/or periodic reminders or take other steps to improve the efficacy of such inspections.

The fact of the matter is that the Defendants did no supervision, review or monitoring of the work of meter readers. What they have done is to make the assumption that meter readers employed directly or indirectly by the electricity suppliers and over whom they have no contractual or statutory control will be appropriately trained so that they notice and report any reasonably obvious visible signs of impending fires in and around the cut-outs. There is no real and certainly no reliable evidence that they took any steps to determine whether there was adequate training or not. It is only in the context and for the purposes of these cases that the Defendants have produced evidence to suggest, broadly, that the training of meter readers was adequate.

It is clear from all the evidence, and in particular that of Messrs Hall, Marklew, French, Rigden, Barker and Davey, that the training of meter readers by the electricity suppliers or by their sub-contractors was relatively basic. It was basic because the workforce is unskilled (as Mr Hall said), because the primary purpose of their attendance of premises is to read the meter and because the primary purpose of looking, albeit cursorily, at the meters and the cut-outs is to look for the most obvious signs of tampering (associated with the illegal abstraction of electricity in effect to bypass the meter).

Whilst I am not satisfied on the evidence that there was generally anything culpably wrong with the training generally provided to meter readers, it is clear that the focus of it was not the inspection of the cut-outs for resistive heating faults. If and to the extent that the Defendants ever really thought about this in any detail, and I am not satisfied that they did, they would have appreciated that reliance upon meter readers employed by others would only produce a limited chance of even visible signs of impending fire-related problems in or around cut-outs being picked up. This is partly attributable to the nature of the training but is also attributable to the reality which is that, at best, hard-pressed, unskilled and relatively poorly paid meter readers should not be relied upon to pick up such signs. It effectively becomes a matter of chance as to whether a one or two second glance picks up such signs.

This however is associated most closely in this case with the biennial inspection complaint which I have addressed above.

There was a considerable amount of evidence relating to RCM and there is, as such, no complaint directly related to the use of this approach. I am satisfied on the evidence that the Defendants did not consciously adopt RCM as the appropriate maintenance approach or policy in relation to cut-outs. RCM involves an effective analysis of equipment (at least in common use) so that its overall reliability can be determined with a view to implementing a maintenance regime related to its reliability. An example, albeit a simple one, is the 10,000 mile service on a car which practice or research has revealed is an appropriate milestone at which, say, to change the oil or adjust the brakes.

What the Defendants did was simply reactive to reports or other indications that there were or might be specific problems at specific premises in relation to cut-outs. This was the so-called "opportunistic" approach and there is nothing wrong with that so far as it goes. The evidence is, and I accept, that the Defendants’ reactive approach was implemented in general terms competently and efficiently. However, the Defendants’ approach (if it was, which I doubt, a conscious one at all) to cut-outs has simply been that they are reliable and long-lasting pieces of equipment with no moving parts and that they need do nothing to them or to inspect them themselves. They did not look at their records to look at this issue at least until these cases were approaching trial; they have instituted no research at all about the periods in which cut-outs should be replaced. They have, at best subconsciously, adopted an ostrich-like approach and they simply await at some undefined stage in the future a "hike" in the statistics which will or might then prompt them into action.

It follows from the above that there are only a limited number of respects in which I am satisfied on the balance of probabilities that there were breaches of the tortious duties owed by the Defendants to the individual Claimants:

What has not been established on a balance of probabilities is any breach relating to temperature strips, TICs, quinquennial inspections and fingertip testing, any breach involving possible replacement of cut-outs every 25 years and any breach relating to the collation of records as to "vulnerable" properties.

As the Claimants pursue a claim based in negligence, it is incumbent on them to prove that any breaches of duty (established on the facts) caused the damage complained of. There is no issue that the fire damage in each of the five cases classified as "damage" for the purposes of the tort. The Claimants put forward clearly in their pleadings a primary case on causation that the breaches of duty were the direct cause of the fires and an alternative case that the breaches were an indirect cause of the fires because they increased the chances of not detecting the resistive heating which ultimately caused the fires. During the opening by the Claimants’ Counsel, a third case on causation emerged which was that, given that first there was said to be a continuing duty on the Defendants to inspect, albeit at most once every two years, and second that there had in fact been no inspections by the Defendants, causation should be judged upon the assumption that the inspection in each of the five cases would have been, say, the day before fires actually broke out; therefore, it is argued, there would have been visible or other sensory signs of the impending fire. I will refer to these three cases as the primary, alternative and third cases.

I can deal relatively shortly with the alternative case. It is not enough, in logic, in fact or in law, to assert or even prove that the breaches led to a greater chance of the fires being avoided, unless and until that greater chance exceeds the balance of probability threshold. Otherwise, if one looks at matters in percentage terms, if there was a 1% chance of the symptoms of the resistive heating fault being noticed which would have been increased by double if there had been a careful inspection, that still leaves only a 2% chance of the fire causing symptoms being discovered. That, in simple terms, would not produce a probability that the relevant symptoms would have been discovered. It is only if the exercise of reasonable care would on the facts probably have led to the fire causing symptoms being discovered that the argument has any validity at all. Once it has got to that stage however, it then falls within the primary case.

As to the primary case, it is clear, and I find, that the fires in none of the properties were caused by the breaches of duty which I have found to exist. My reasons are as follows:

I therefore turned to the "third case". Whilst arguably special rules about causation have been developed, principally in the higher courts, in relation to particular cases such as asbestos related diseases, there certainly has not been any authority which suggests that special rules need to be developed in relation to fires caused by arguably careless inspections or inspection regimes by power distributors. The argument runs along these lines: there is a continuing duty on the Defendants to inspect, repair and replace cut-outs and, if they do not institute any inspection regime themselves, they continue to be in breach right up to the moment when the fire actually starts so that in effect the breach is to be considered as having occurred no earlier than the date at which visible signs of an impending fire should have been picked up by a careful inspection. There is something illogical about this approach because it is common ground at least in this case that biennial inspections could only reasonably be expected to pick up a very small number of cut-outs which happened, at the time of the biennial inspection of them, coincidentally to reveal the signs of an impending fire. There was some discussion and disagreement between the experts as to whether this was less than 1% (the Defendants’ experts’ position) or between 1% and 10% (Dr Fletcher’s position). In this context, I prefer the evidence of the Defendants as statistically more likely, bearing in mind such statistics about fires and claims in relation thereto as are available.

It follows that, if a biennial inspection regime had been instituted in relation to the Claimants’ premises along with the 8 million others within the Defendants’ areas, it would simply have been a matter of chance as to whether the impending signs were actually present. It has been established, and agreed by the experts, that in all five cases a meter reader visited the premises with the frequency substantially better than the biennial inspection regime. To establish causation, it would be necessary to establish that a biennial inspection regime would probably have picked up the visible signs and one can not establish that unless it could be shown in effect that the actual inspection for the individual properties would probably have been at a time when the signs would have been visible. The Claimants can not do that. Even in the case of Smith when the meter reader inspected the day before, it is the case that the signs would not have been visible to him; the same is true in relation to the Surtees case when the inspection was five days before the fire. It has not been established that there would be appropriate signs of an impending resistive heating problem beyond more than two or three days before the fire or at least scorching broke out.

The Claimants have belatedly (after the closings, albeit predicated within the closings) applied for permission to amend their Particulars of Claim to plead the third case in the Mead, Rice and Shaheen cases. I presume that they have not pleaded such a case in relation to Smith and Surtees because the meter reader inspection took place one day and five days respectively before the fires broke out. In the three cases in which they seek permission to amend, they pleaded in their Amended Replies (served as late as 12 April 2012, some three weeks before the trial) a continuing duty. An example is Paragraph 9D of the Mead Amended Reply:

“…the Claimant’s case as to causation is as follows. The duty of the Defendant was to take reasonable care to install, inspect, maintain and repair its Equipment at and serving the Premises. This duty was a continuing duty, and the proper discharge of that duty involved taking the steps pleaded at paragraph 13.2 of the Re-Amended Particulars of Claim. As pleaded at paragraph 13 of the Re-Amended Particulars of Claim, the Defendant was in breach of its duty, which was a continuing breach. That Claimant’s case is that had the breach been rectified as it should have been in the days leading up to the fire the defects would have been identified and remedied in time to avoid the fire."

There is an implicit and correct acceptance that this positive case should have been but was not pleaded in the Particulars of Claim. The problem for the Claimants is that the Re-Amended Particulars of Claim are predicated upon the biennial inspection being "carried out by the meter reader" (see for instance Paragraph 13.2 in the Mead case). The Claimants’ case has now metamorphosed into one which does not necessarily or at all involve the meter readers. The pleadings have not yet subject to the amendment caught up. The proposed amendments involve alternative pleas which involve meter readers not being involved; for instance, in the Mead case, the proposed amendment states:

“Alternatively, if such inspection was not properly carried out by meter readers as aforesaid, the Defendant thereby failed to carry out a proper inspection as alleged at paras…above but remained under a continuing duty to inspect and repair or replace the cut-out (and remained in breach of that duty) as set out in Para 9D of the Amended Reply herein".

The application to amend is opposed by the Defendants. The grounds are that it is too late and that there is actual or potential prejudice. I am satisfied that this objection is a good one. The fact that the third case on causation was floated in the Amended Reply does not assist because it should always have been pleaded in the Particulars of the Claim; the Amended Reply was submitted very late in the process and it was really only in the opening that the impact of the third case was explained and amplified by the Claimants’ Counsel, at which stage objection was taken. I accept the arguments put forward by the Defendants’ Counsel that there is prejudice because the Defendants lost the opportunity to produce evidence about the reasonableness of themselves carrying out inspection using their own personnel or personnel other than the meter readers; this would have included the number of employees necessarily involved, the costs thereof, additional evidence about obtaining access and the practicality including the impact of such a regime on the licence framework if biennial inspections were introduced. By reason of the late amendments, the Defendants have been denied that opportunity. Accordingly the applications to amend in this context are refused.

As indicated elsewhere, I would have been against the Claimants on the third case in any event.

In conclusion, the Claimants have failed to establish that any breach of duty caused the fire in any of the five cases with which this judgement is concerned.

It is unnecessary, strictly speaking, to consider the one principal remaining issue, primarily arising in the case of Rice which relates to certain exclusions or limitation of liability clauses in the Scheme the terms of which Mr and Mrs Rice were subject to. There was no realistic argument that the Scheme applied, relevant clauses which are:

“4.

“Domestic customer" means a Customer supplied at premises, which are domestic premises (as defined from time to time in the conditions of the Supply Licence).

"Economic Loss" means any loss of profits, revenues, interest, business goodwill, or commercial, market or economic opportunity, whether direct or indirect, and whether or not foreseeable"

8.3

Subject to any contrary written agreement subsisting between SEEBOARD Power Networks plc and the Customer, SEEBOARD Power Networks plc shall not be liable to the Customer under this Deemed Contract or otherwise for any loss or damage to the Customer which: (a) is beyond the reasonable control of SEEBOARD Power Networks plc; or (b) is consequential or indirect, or arises from or amounts to Economic Loss.”

8.4

Where the Customer is a non-Domestic Customer, and subject to any contrary written agreement that he may have with SEEBOARD Power Networks plc, the liability of SEEBOARD Power Networks plc to that Customer under this Deemed Contract or otherwise shall be limited to a maximum sum of £100,000 in respect of all claims arising in any calendar year.”

The Supply Licence (referred to in Clause 4) defined domestic premises as "premises at which a supply is taken wholly or mainly for domestic purposes".

The relevant Claimant argued that it was in effect a domestic customer as opposed to a "non-Domestic Customer” and there was an issue of fact about that. There are also issues as to whether any loss claimed falls within "Economic Loss".

If it was necessary to have decided the matter, on the facts I would have found that the premises, in which the fire occurred, namely the bungalow in which Mr and the late Mrs Rice actually lived, were domestic premises as opposed to non-Domestic premises in any event. That is where they actually lived and slept. The Defendants seek to show that Mr Rice was a business customer and that he had elected to remain on a business tariff. This case was not sustainable in the light of his cross examination and the documents, which showed that he had inherited the billing arrangement from the gentleman from whom he bought his business, that he merely received a single bill for both his meters, one servicing the bungalow where they lived and the other the dog kennels (where the dogs lived) and the fact that the Premises were divided physically into 2 parts: his residential accommodation (bungalow) and the kennels. There was no reason for him to query having 2 meters; he assumed that one was business and one was domestic.

Accordingly, Mr Rice would not have been subjected to the £100,000 cap in any event.

However, to the extent that his claim includes loss of profit, I would have found that this was Economic Loss because such a claim falls fairly and squarely within the definition of that term in the Scheme. To the extent that the claim relates to the costs of and occasioned by the physical fire damage, such as remedial works costs and any related temporary displacement costs, they are obviously not "Economic Loss” and they are not consequential or indirect: they are direct losses. To the extent that loss of profit was sought, I would not have held that the exclusion was "caught" by Section 21 of the Electricity Act 1989 or the Unfair Contract Terms Act or that it was anything other than reasonable.

There were also other issues arising under Section 21 of the Electricity Act 1989 as amended, which reads:

“An electricity distributor may require any person who requires a connection in pursuance of section 16(1) above to accept in respect of the making of the connection—

(a)

any restrictions which must be imposed for the purpose of enabling the distributor to comply with regulations under section 29;

(b)

any terms which it is reasonable in all the circumstances for that person to be required to accept; and

(c)

without prejudice to the generality of paragraph (b), any terms restricting any liability of the distributor for economic loss resulting from negligence which it is reasonable in all the circumstances for that person to be required to accept.”

If I had to decide the issue, I would have held that the burden of proof is on the electricity distributor to show that restrictions in the standard terms which customers are required to access, be they limitation or exclusion clauses, were reasonable, on the basis that the wording suggests it. However, I would not have held that the cap of £100,000 introduced into the terms was at the dates of the fires in question unreasonable because the evidence suggested that the large bulk of fires cost less than £100,000 to repair.

There were some issues about limitation but these primarily related to complaints about negligent installation in the historic past. Given the fact that the Claimants dropped the complaints about negligent installation, this aspect of limitation is immaterial. So far as the other complaints were concerned, limitation would not have arisen because, if there had been any breaches of duty which caused the fires, the negligence would not have been completed until the fire broke out; all the Claims were issued within six years of the fires. As for the breaches of duty, whether or not there were breaches more than 15 years before the Claims were issued, that would not have mattered because the same breaches would have occurred within 15 years prior to the issue of the requisite proceedings. An example might have been the failure to replace the cut-out in the Shaheen premises where the cut-out was installed in 1962 some 44 years before the fire; if I had found or it had been open to me to find that the cut-out should have been replaced after 40 years, the fire was in December 2006 and the replacement on that hypothesis should have been effected in 2002; the Claim was issued in 2008 and there would have been no particular problem so far as limitation was concerned.

It follows from the above that the Claimants’ Claims must be dismissed and there will be judgment for the Defendants in each of the five sets of proceedings. Although limited breaches of duty have been established, it has not been established to anywhere near the requisite standard of proof that such breaches caused fires in any of the cases.

Counsel for the Defendants reminded me, properly, that these five cases have not been in the nature of a public enquiry. In a public enquiry, the tribunal might well have called for much more and different evidence to that which was deployed. A Court can usually only base its decision on the case as put in the pleadings and on the evidence which is actually deployed in front of it. It may be however that the electrical distribution and supply industries may feel, at least in respect of the findings in this case, that they need actively to consider what the impact of ageing generations of cut-outs will be as time marches on.