England and Wales High Court (Technology and Construction Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
TECHNOLOGY AND CONSTRUCTION COURT

		Birmingham Civil Justice Centre 33 Bull Street Birmingham B4 6DS
		6 November 2002

 

1. Mr and Mrs Venables, the claimants, are the owners of a large house in Top Road, Acton Trussell, Staffordshire. Mr Wardle, the defendant, who is a specialist plumbing and heating engineer, undertook work for them at their home. This included the fitting of copper pipes for the hot and cold water systems, including the central heating. Since installation some of the cold water pipes have corroded and there have been six leaks in total. The claimants' case is that the pipes have corroded such that all the pipework will have to be replaced.
2. The main and Part 20 actions were listed for trial beginning 7 October 2002. It was not possible to deal with witnesses of fact and most issues were adjourned, but Mr Wilson, a single joint expert, gave evidence. On 8 October 2002 the court directed the parties to file written submissions for the trial of preliminary issues, namely
3. Between the claimants and Mr Wardle: "Were the pipes fitted at the property of satisfactory quality and/or reasonably fit for their purpose?"
4. As between Mr Wardle and Keyline: "Were the pipes sold by Keyline to Mr Wardle of satisfactory quality and/or reasonably fit for their purpose?"
5. Factual matters have not yet been tested at trial. The following summary is not to be taken as representing any finding by the court but are matters which appear to be common ground. Mr Wardle is the first claimant's nephew. He knew of the size of the claimants' family: the claimants have two daughters, of whom one has two children. The claimants began to build the property over a period of time beginning spring 1993. The claimants engaged Mr Wardle to install pipework as well as to undertake other work at the property. The claimants say that Mr Wardle carried out work between 1993 and 1997. Mr Wardle says he installed pipework in 1993 and 1994. I make no findings on those matters. However, it appears that in 1995 (possibly October 1995) Mr Wardle filled the hot and cold systems with water, checked for leaks, flushed the systems and left them for the claimants to use. The claimants did not move into the house until February 1997. Between 1995 and February 1997 other workmen drew water from taps in the house for use in construction. Since living in the house, the claimants have developed the habit of shutting off the mains if the house is to be left unoccupied, even for short periods of time.
6. The first leak occurred in May 1996. Further leaks occurred in 1998, and again in April, July and September 1999. Leaks have occurred to both 22mm and 28mm copper pipe. The pipes leaked because they had corroded. They corroded because periods of low and/or intermittent use of the pipes resulted in poor or partial formation of a protective layer of cuprous oxide on the inside of the pipes.
7. There is no allegation that Mr Wardle failed to exercise skill or care. The claimant's case is simply that the 22mm and the 28mm copper pipe is defective, in that it was not of satisfactory quality nor fit for the purpose, because it corroded within a short time after having been installed. It was not of satisfactory quality nor fit for the purpose in that it was not suitable for use in a property with low and/or intermittent water use. The claimants' case is that terms were implied into the contract(s) with Mr Wardle pursuant to Section 14 Sale of Goods Act 1979 ("the 1979 Act") namely that Mr Wardle would use materials and supply a plumbing system of satisfactory quality, and would use materials and supply a plumbing system which were fit for the purpose of being installed in a dwelling. This imported obligations that the materials would be of good quality having regard to the nature of the house and that the pipes would be durable for at least 20 years. Mr Wardle knew that this was a substantial property with five bedrooms and bathrooms and a separate flat and that there were runs of horizontal pipework with a substantial bore. He must have known, from his knowledge of the family, that there would be such low/intermittent use; the plumbing system was to be fit for low and/or intermittent water use. The claimants allege that the pipes and plumbing system were not of satisfactory quality or fit for the purpose because pipes corroded and leaked and were not suitable for use in a house with low and/or intermittent water use.
8. The claimants claim (amongst other matters) that the whole of the system requires to be replaced. So far, the leaks have occurred in relatively accessible locations. But much of the pipework is concealed behind what is described as expensive floor, wall and ceiling finishes, so that necessary work may be expensive and there may be substantial upheaval for the claimants.
9. Mr Wardle's case is that, although he installed all the pipes, he did not supply it all. There are issues as to the number, date and terms of contracts or contract between the claimant and Mr Wardle. These are yet to be tried. Mr Wardle accepts that some pipes have corroded. He denies the allegation that the pipe was not of satisfactory quality nor fit for its purpose. Mr Wardle admits that he knew of the size of the claimants' family but denies that he knew of the likely low occupancy of the house.
10. The supply of pipes may span the periods before and after 3 January 1995. Mr Brennan for Mr Wardle therefore submits that the court must consider how the terms implied into a contract for the sale of goods pursuant to section 14 of the 1979 Act and for the transfer of goods pursuant to section 4 Supply of Goods and Services Act 1982 ("the 1982 Act") were amended with effect from 3 January 1995 by Sale and Supply of Goods Act 1994 ("the 1994 Act"). Mr Cousins, for the claimants, does not challenge that. Applying the different tests in these Acts, Mr Wardle accepts that there were implied terms that he would use materials of merchantable or satisfactory quality and which were reasonably fit for the purpose for which such goods are normally supplied. His case is that the pipes were suitable for use in the installation of domestic plumbing. They were therefore reasonably fit for the purpose and of merchantable or satisfactory quality.
11. Mr Wardle has a Part 20 claim against Keyline Builders Merchants Limited who, it is claimed, supplied the pipes. Keyline, in turn, make a Part 20 claim against Boliden Metal Suppliers Limited from whom Keyline claims that it bought the pipes. Keyline does not admit supplying the relevant piping to Mr Wardle. It maintains a limitation defence. Keyline contends that the pipes were of satisfactory quality and fit for purpose, namely for use in a domestic plumbing and heating system, and that they were suitable for all types of domestic applications including properties with low/and or intermittent water use. Its case is that any corrosion resulted from incorrect installation and commissioning and any corrosion would have been exacerbated by low and/or intermittent use of pipe runs.
12. Boliden does not admit supplying the relevant pipes to Keyline, alleging that some of the pipe which leaked had been supplied by other manufacturers. Its case is that implied terms as to quality and so on were excluded and it denies the allegations that pipes were defective.
13. Mr Richard Wilson was appointed single joint expert. He reported in February 2001. He provided helpful replies to parties' questions and evidence at trial. He explained that the cause of leaking is building use and stagnancy, preventing the proper build up of a protective layer of cuprous oxide inside the pipes. There needs to be a sufficient flow of water in order to build up an adhering cuprous oxide layer on the inside of the pipes. Here, periods of low/intermittent use and possible low occupancy have resulted in a poor or partial formation of a protective layer of cuprous oxide. The failure to build up that layer has allowed slime, or bio film, to build up instead, leading to pitting corrosion. A combination of long horizontal pipe runs and low flows allows sediment to settle. Low flow results in elevated temperatures and encourages bacterial growth. Stagnancy or part-full pipes may be contributory factors to corrosion. The water type may promote certain kinds of corrosion. The system contains a water softener. Leaks have occurred in pipes containing both untreated and softened water. Pipes containing unsoftened mains water have pitted along a water line. But water quality is not the sole cause of the problem because the majority of properties in the area are not affected. The first few months of service of copper pipework are critical. If no protective layer is formed then, and another layer of deposits forms, there will be vulnerability to corrosion. It is highly likely that, in the period between 1995 and February 1997, there were extended periods of stagnancy. The 1996 and 1998 corrosions were due to bio-film. With biofilm growth, leaking can occur in as little as 6 years. The pipes would not have deteriorated between manufacture and the date when water was first introduced to the system. The claimants' practice, possibly beginning 1996, was to shut off the mains if they left the house. This practice, if water is then drawn off, will exacerbate the problem, because if a pipe is only half full this will increase the likelihood of microbiological growth.
14. It was not possible to say that further leaks would not occur. Corrosion processes may be ongoing. There could be further leaks next week or after a number of years.
15. Mr Wilson has extensive relevant experience. However, he had not come across any previous instance of a domestic dwelling in which copper pipes had failed.
16. Samples of affected pipes were taken and tests have been carried out. Mr Wilson notes that leaks have occurred in copper pipes manufactured not only by Boliden but also by Wednesbury Tube and IMI Yorkshire.
17. Prior to 3 January 1995, section 14(2) of the 1979 Act required that goods sold be of merchantable quality. After 3 January 1995, the 1979 Act was amended by the 1994 Act. Thereafter, the relevant provisions of section 14 of the 1979 Act are as follows:

"(2) Where the seller sells goods in the course of a business, there is an implied term that the goods supplied under the contract are of satisfactory quality.

"(2A) For the purposes of this Act, goods are of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory, taking into account any description of the goods, the price (if relevant) and all the other circumstances.

(2B) For the purposes of this Act, the quality of the goods includes their state and condition, and the following (among others) are in appropriate cases aspects of the quality of goods-

fitness for all the purposes for which goods of the kind in question are commonly supplied,

appearance and finish, freedom from minor defects, safety, and durability.......

Where the seller sells goods in the course of a business and the buyer, expressly or by

implication, makes known..to the seller.....any particular purpose for which the goods are being bought, there is an implied term that the goods supplied under the contract are reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied, except where the circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the skill or judgment of the seller."

18. Mr Cousins on behalf of the claimants submits that the pipes were used for an ordinary or normal purpose, namely installation in a dwelling. There is no suggestion that prior to installation the pipes had been subjected to any improper treatment; there was nothing abnormal or idiosyncratic about the use, or the circumstances of that use. The only features to which Mr Wardle can point are the absence of anyone in residence for a period following the introduction of water to the system, the relatively low use of water at the property, intermittent stagnancy of water in various pipes and the practice of shutting off water from 1996 during periods of absence from the house. Mr Cousins submits that none of these features renders the use out of the ordinary or abnormal. Houses are often built and left empty for long periods of time. Owners cannot always move in because of work commitments. Holiday homes completed might not be occupied for months after construction and then for only brief periods of the year; there must be thousands of such homes across Britain and the continent. In the case of this property, as the water records show, there was use of water from an early stage, even though no one lived at the property for a period of time. The leaks began in 1996, the year following introduction of water to the system. In any large house it is virtually inevitable that water will be stagnant in some runs of pipe for long periods; this may be the case, for example, in a pipe serving an en suite bathroom to a spare room. Often particularly older couples with grown up children will be in houses with far more accommodation than they require for their day to day use. In such houses the pipes serving the little-used parts will contain stagnant water. The practice of shutting off water began only following the first leak. It was a perfectly reasonable reaction to the known problem. Again, it is not abnormal or idiosyncratic for people to shut off water when going away from home
19. The pipes were therefore not of satisfactory quality. They were not fit for all of the purposes for which pipes are commonly supplied. They failed in operating in ordinary circumstances. Those circumstances cannot be categorised as abnormal or idiosyncratic. Further, the pipes were not reasonably fit for their purpose. Mr Wardle knew the size of the family and the size of the property. It was obvious that a modestly sized family, living in what Mr Wardle has admitted he knew to be a very substantial property with 5 bedrooms and bathrooms and a separate flat (in all covering about 6,000 sq. feet), would not occupy the house as "intensively" as it would a smaller property.
20. Mr Cousins relies on the following passage in Chitty on Contracts, 28^th edition at paragraph 43-082:

"The duty to supply goods of satisfactory quality is strict: it is no defence to prove that all care was taken." .........The reference to the purposes for which the goods are commonly supplied may, in addition to excluding an abnormal or idiosyncratic use of the goods, enable the courts to avoid the extreme position that the goods must be fit for whatever purpose the buyer happens to require them."

21. He relies also on a passage in Benjamin's Sale of Goods, 5^th edition, at paragraph 11-052:

"In principle durability is an aspect of quality on delivery: goods are not of satisfactory quality at the time unless they are capable of enduring for a period reasonable in the circumstances, and the fact that they seriously deteriorate or (for example) break down during such a period is evidence that they were not of satisfactory quality. ......Even assuming that this exists as a special implied term, for most sales, the fact that the goods do not last the period which might be expected is no more than a symptom of their inappropriate quality, state or condition at the time [when property passes]."

22. The claimants rely on Mr Wilson's evidence that the normal standard for life of copper pipes in commercial buildings is 25 years for cold water pipe and 20 years for hot water pipes. The life of hot pipes is less since hot circulating soft water corrodes the pipe wall more quickly than in cold pipes. The very high quality fabric and finishes to the claimants' house probably have a greater life expectancy than 20 years. It is, therefore, clear that the pipes supplied did not remain functional for the period of durability to be expected.
23. Pipes sold or supplied before 3 January 1995
24. I accept Mr Brennan's submission (which was not challenged) that time for compliance with the requirements for merchantable or satisfactory quality and fitness for purpose is when the piping was fitted at the property. This occurred before (1) the system was filled with water (2) the plumbing system was commissioned (3) the opportunity arose to maintain a flow of water through the pipes and (4) intermittent use of water began.
25. The claimants' case appears to rely on an absolute approach: because the pipes failed before 20 years had elapsed, they are necessarily not of satisfactory quality. That approach cannot be right.
26. So far as merchantable quality is concerned, I find helpful the guidance of the Court of Appeal in M/S Aswan Engineering Establishment v Lupdine Limited [1987] 1 WLR 1: goods were of merchantable quality as required by section 14(2) if they were fit for any of the purposes for which they were commonly bought:

"In order to comply with that requirement, the goods did not have to be suitable for every purposes within a range or purposes for which goods were normally bought under that description. It was sufficient that they were suitable for one or more such purposes without the abatement of price since, if they were, they were commercially saleable under that description".

27. So far as fitness for purpose is concerned, I am referred to Griffiths v Peter Conway Ltd [1939] 1 All ER 685 and to Slater v Finning [1996] 3 WLR 190. In both cases the court found it was incumbent upon the buyer to have raised with the seller if there were unusual features which might give rise to doubt as to suitability. The vendor is entitled to assume that the goods are required for their normal purposes, or one of their normal purposes, unless notified otherwise. In Slater, Lord Keith said:

"As a matter of principle, therefore, it may be said that where a buyer purchases goods from a seller who deals in goods of that description there is no breach of the implied condition of fitness where the failure of the goods to meet their intended purpose arises from an abnormal feature or idiosyncrasy not made known to the seller by the buyer or in the circumstances of the use of the goods by the buyer. That is the case whether or not the buyer himself is aware of the abnormal feature or the idiosyncrasy".

28. I have also considered carefully the judgment of Lord Steyn at pages 200-202 of Slater.
29. Mr Wilson's evidence is that the pipes conformed to the relevant British standard. He rejected the suggestion that there was anything wrong with the pipes. His evidence is that the pitting corrosion was not due to any manufacturing quality control problem. This was particularly so given that the probability of pipes from three different manufacturers having the same rare manufacturing fault at the same property was negligible. As pipes from three different suppliers have corroded in this house, Mr Wilson considered local factors to do with water quality and condition of the mains supply. Whilst those were of some relevance, increasing the risk of corrosion of copper pipes, it is clear that water quality was not the sole cause. The corrosion is related principally to building use and stagnancy rather than to poor manufacture. The pipes were fit for installation in an ordinary dwellinghouse.
30. Copper pipes of this type are in widespread use in domestic plumbing systems. They were and are commonly supplied for that purpose. The only other possible product is plastic pipe, but that is not available in all the sizes required for this house. Mr Wilson confirmed that no plumber could have been criticised for using copper pipes here. The problem suffered by the claimants is exceedingly rare, and the only one known to Mr Wilson in a domestic system.
31. Mr Wilson's evidence is that this is an extremely unusual problem. The pipes failed because of corrosion caused by intermittent water use and stagnancy not because of defects in the pipes. To avoid corrosion of the sort experienced here, there needed to be a continuous flow of water to build up a protective film. The crucial features were the intermittent flow and the fact that pipes were left partially full at times. Corrosion could not have occurred until the water use began, then became intermittent. If the water supply after the plumbing system was fitted in 1995 had been constant but nevertheless at low volume, the crucial factors would probably not have occurred. Mr Wilson's evidence is that the first few months of service of copper pipework systems are critical. This is when the normal protective adhering copper oxide layer is formed in a regular flow of fresh water. The development of such a layer is straightforward. But if this does not happen and another layer or film of material forms or deposits instead of the protective copper oxide, then the pipe surface will be vulnerable to corrosion. Here, the claimants' use of the water systems during the extended period from 1995 when they were filled until February 1997 when the claimants moved into the property was low and intermittent. There was probably insufficient flow for the protective layer of cuprous oxide to have been deposited. Thereafter, the risk of corrosion was exacerbated by the practice of shutting off the mains water when the claimants left the house. This use was, in Lord Keith's description, abnormal or idiosyncratic.
32. Usage after incorrect installation or commissioning is not a purpose in respect of which failures are actionable. Reasonably fit does not cover proof against misuse: Heil v Hedges [1951] TLR 512. Here, there was misuse, in the sense there was insufficient water flow through the pipes to permit a build up of the protective cuprous oxide layer. The pipes were fit for any dwellinghouse including those with intermittent usage. The claimants' practice of shutting off the mains when leaving the property amounted to misuse of pipes which had not acquired sufficient protection.
33. There is no good reason why copper pipes should not now be used at the property. The only difference which would arise would be in respect of usage: water flow through the pipes should be maintained and water should not be allowed to stagnate in the pipes.
34. I conclude that the pipes were of merchantable quality.
35. I conclude also that the pipes were reasonably fit for the purpose for which copper piping of that sort was and is commonly supplied. They were fit for the purpose for which copper piping of 28mm, 22mm and 15mm diameter was commonly bought, namely for installation in domestic dwellings for use in domestic hot and cold water systems. Whether the pipes were reasonably fit indicates an objective test. What standard would a reasonable person find acceptable? The implied term as to fitness for purpose is complied with if the pipes, when supplied, are in such condition that, if properly installed and used, they do not fail within a short time. The failures here occurred as a result of abnormal or idiosyncratic use. Water stagnation and limited and intermittent flow caused the corrosion which led to the pitting and leaks. Those factors are not connected with the quality or condition of the pipe when supplied but with use of the pipe after supply.
36. It cannot be said that the circumstances of the usage in this case are such that it is a purpose for which this piping is commonly supplied. As between the claimants and Mr Wardle, I have regard to Mr Wardle's knowledge of the size of the claimants' family. The claimants do not suggest that Mr Wardle knew that the claimants' use of the systems after commissioning would be low or intermittent, or that a long period would elapse before the claimants would move in. The period between the fitting of the pipes and the claimants moving into the property was unusually long and the claimants' pattern of use of water was abnormal. The claimants had not made known to Mr Wardle that they required pipes which could cope with such unusual circumstances. That is not an inference which could be drawn simply from Mr Wardle's knowledge of the family. In any event, the evidence suggests that the corrosion occurred because of the low and/or intermittent use of water pipes during the early period before the claimants' family moved into the house, not by usage connected with the size of the family. The pipes were durable with normal use. It was the abnormal, or idiosyncratic, use which caused the problems.
37. As between Mr Wardle and Keyline, it is not suggested that any particular purpose was expressly or impliedly notified to Keyline. Mr Wardle's evidence indicates that he often bought piping from Keyline for a multiplicity of projects. Keyline would not have known nor is it suggested it was notified of any particular purpose for which the pipes were required.
38. No such term is implied "where the circumstances show that the buyer does not rely or that it is unreasonable for him to rely, on the skill or judgment of the seller". As the purpose is the abnormal or idiosyncratic one contended for by claimants, then the claimants did not rely, nor was it reasonable for them to have relied, on the skill and judgment of Mr Wardle if Mr Wardle was the seller. Similarly, Mr Wardle did not rely, nor was it reasonable for him to have relied, on the skill on judgment of Keyline if Keyline was the seller.
39. The pipes were fit for the purpose for which copper pipes of that sort were, and indeed are, commonly supplied.
40. Pipes sold or supplied after 3 January 1995
41. For the same reasons as I have stated above and for the reasons which follow, I conclude that the pipes were of satisfactory quality.
42. The test for pipes supplied after 3 January 1995 is whether they were of satisfactory quality having regard to the matters listed in paragraph 2(B) of the 1979 Act as amended. The test is the standard that a reasonable person would regard as satisfactory, taking account of all relevant circumstances. This makes it clear that failure, without more, is not determinative. It is not sufficient to say, as the claimants in effect say, that because the pipes corroded quickly they were therefore not satisfactory.
43. Such pipes were not commonly supplied to properties where the pattern of use would be that experienced in the claimants' property. What is durable in these circumstances? On Mr Wilson's evidence, pipes in a domestic environment should be capable of lasting for a period of 20 years (hot water systems) and 25 years (cold water systems) assuming normal, not idiosyncratic or abnormal, usage. Pipes are not commonly supplied for the purpose of lasting for those periods of time with abnormal or idiosyncratic usage. At the time the pipes were fitted, they were likely to be safe and to have the durability to be expected of such pipes used in a domestic system. They were likely to have been durable given normal use. It is the abnormal or idiosyncratic use in this context which has resulted in failures. It cannot be said that the pipes were not fit for the purpose for which they were supplied because, in this house, they were not durable.
44. Accordingly, in my judgment the pipes were of satisfactory quality within the meaning of the 1979 Act as amended. For the reasons given above, the pipes were reasonably fit for their purpose.
45. The answers to questions 1 and 2 are therefore: Yes