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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
TECHNOLOGY & CONSTRUCTION COURT

		08.09.14

 


A: Introduction

1. This is a claim for damages brought by the claimant for breach of the statutory duty imposed by section 2 of the Consumer Protection Act 1987 ("the 1987 Act") and/or for negligence arising out of a fire which occurred at the property which was then the claimant's home at No 48 Blenheim Crescent, Broughton Astley, Leicester LE9 6QY between 31 December 2009 and 1 January 2010, in the course of which a Samsung fridge freezer, model RS21 DCNS (to which I shall refer as either "the appliance" or "the fridge freezer") caught fire.
2. In his written opening submissions on behalf of the claimant, Mr Crowley made only passing or fleeting reference to the alternative cause of action in negligence: it is referred to only in three words at the end of paragraph 8, nowhere in paragraphs 44 to 50, which is the section of his written opening submissions in which Mr Crowley analysed in some detail the cause of action under the 1987 Act, and again in three words at the end of paragraph 57.
3. In paragraph 31 of his written opening submissions on behalf of the defendant, Mr Shapiro submitted: "The claimant originally put its claim in negligence. It is believed that the claimant is no longer pursuing claim in negligence."
4. Neither counsel referred to the alternative cause of action in negligence in the course of their oral opening submissions; similarly neither counsel referred to the alternative cause of action in their oral closing submissions, which focused closely on the necessary ingredients of the cause of action under the 1987 Act. At the end of his written closing submissions, in paragraph 35 Mr Crowley revived his brief reference to the alternative cause of action in negligence, and submitted in paragraph 36 that the claimant "does not withdraw the negligence claim and relies on res ipsa loquitur ..."
5. The whole focus of the trial was thus on the cause of action brought under the 1987 Act. No evidence was directed specifically to the issue of the nature or extent of any duty of care; though, as regards breach of duty, in paragraph 14 of the particulars of claim, the claimant states that he will rely on the facts and matters alleged in respect of breach of statutory duty in paragraph 13 of the particulars of claim. I will therefore first address the claim brought under the 1987 Act before turning to consider briefly the alternative claim.

B: The background facts

6. In 2007 the claimant purchased the appliance: see paragraph 8 of his witness statement (page 1/58).
7. In the weeks before Christmas 2009, the claimant had his kitchen entirely refurbished at a cost of some £14,000: see paragraph 7 of his witness statement. He retained the fridge freezer, which was temporarily moved into the hall while the new kitchen was being fitted. Then, a few days before Christmas, it was moved back into the kitchen, into a new position immediately to the left of the internal door from the kitchen to the hall as one looks towards the door from inside the kitchen.
8. The work to the kitchen had not been completed by Christmas: for example the wall socket for the fridge freezer, which had been misplaced, had yet to be plastered in, and the flooring had yet to be renewed: it was still the previous vinyl flooring.
9. On New Year's Eve the claimant invited his parents to lunch. The claimant was born on 18 May 1967, and was thus then 42 years old. He was then living on his own, and his two teenage daughters would visit and stay at the house on a regular basis.
10. The claimant was and remains a smoker: he smokes Marlboro Lights. His average consumption was and remains 10 cigarettes a day, though that can rise to 20 cigarettes a day when he is socialising. He smoked inside the house in the 'snug', which was one of the downstairs reception rooms. However, he did not smoke in the presence of his parents; neither of them smoke, and they disapproved of smoking as a habit.
11. On New Year's Eve, his parents arrived for a late lunch, which the claimant cooked. They sat down to table at around 3pm (see paragraph 6 of Mrs Hufford's witness statement at page 1/80), and after that late lunch was finished the claimant went into the garden to smoke a cigarette. He stated that he stubbed the cigarette out on a plant pot, which he regularly used for such purpose.
12. After lunch they had some tea, after which he and his parents did some tidying up in the kitchen; he stated that he took out a bin bag of rubbish; he was using loose bin bags at the time, while the kitchen was being refurbished; he had not yet purchased a waste disposal unit.
13. However, the work surfaces were not left clear. Photographs G and H show that a plate with the remnants of some food, and a mug, were left on the work surface to the left of the sink. Furthermore, photographs K, L and M show that an ashtray had been left on the work surface immediately above the washing machine, and that the ashtray appears to be empty. The composite photograph no 3 which Mr Bullen prepared shows that was only 2 or 3 feet away from the front left hand side of the appliance.
14. The claimant and his parents left together at about 6 pm, his parents to return to their home, and he to visit his then girlfriend for a New Year's Eve party.
15. The following day, New Year's Day, he returned to the house at about 5pm and discovered the house was in darkness, and was cold (see the description on page 1/265). He then discovered that there had been a fire in the house, and telephoned the Fire Brigade.

C: The central issue in the claim under the 1987 Act

16. The central issue in the claim under the 1987 Act is whether the appliance was defective within the meaning of section 3 the 1987 Act: see paragraphs 2 and 13 of the particulars of claim, and paragraph 44 of Mr Crowley's written opening submissions.
17. Section 3 of the 1987 Act provides:

"… there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect: and for these purposes "safety", in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury."

18. The claimant thus contends, by reference to section 3 of the 1987 Act, that because -- on his case -- the appliance caught fire in the course of normal use, its safety was "not such as persons generally are entitled to expect", and thus there was "a defect in (the) product".
19. The essence of the claimant's case is that the fire originated inside the appliance, in the machinery compartment at the rear: see the plan at page 1/324.
20. In contrast, the essence of the defendant's case is that the fire originated outside the appliance, namely in some combustible material outside and to the front of the appliance.

D: Analysis of the legal principles engaged as regards what has to be proved, the means of proof, and the burden of proof

21. It is necessary to consider at least the following topics in considering what matters have to be proved, by whom, and how such matters are to be proved.
22. The first point is to consider whether or not this is a "closed list" case. The claimant contends that it is: see paragraph 7 of the claimant's written closing submissions; the two causes of fire being contended for being an unspecified electrical fault in the machinery compartment at the rear of the appliance, which is the claimant's case; and the igniting of an amount of combustible material at the front of the appliance by reason of discarded smokers materials, which is the defendant's case. The defendant contended in the course of closing oral submissions (DG/85) that it is not, because some damage might have been caused to the appliance when it was moved from the kitchen into the hall to enable the refurbishment of the kitchen to take place shortly before Christmas 2009, and/or when it was then moved back into the kitchen.
23. I accept that in theory this may not be a closed list case, because the defendant has raised the possibility of there being a third means whereby damage might have been caused to the appliance. However, no evidence was called at trial in relation to what, if any, damage either was or might have been caused to the appliance when it was moved from the kitchen to the hall and then back again shortly before Christmas 2009. Instead of the expert opinion evidence focused on the two alternative causes contended for by the parties. Thus in practical terms the trial proceeded on the basis or footing that this was in effect a closed list case.
24. Second: it is necessary to have regard to all the circumstances of, and the evidence adduced in, the case: see paragraph 34 of the judgement of Toulson LJ in Milton Keynes BC v Nulty [2013] 1 WLR 1183; [2013] EWCA Civ 15, where he held:

"A case based on circumstantial evidence depends for its cogency on the combination of relevant circumstances and the likelihood or unlikelihood of coincidence. A party advancing it argues that the circumstances can only or most probably be accounted for by the explanation which it suggests. Consideration of such case necessarily involves looking at the whole picture, including what gaps there are in the evidence, whether the individual factors relied upon are in themselves properly established, what factors may point away from the suggested explanation, and what other explanation might fit the circumstances."

25. Third: in relation to a claim under the 1987 Act, a claimant does not have to specify or identify with accuracy or precision the defect in the product he seeks to establish, and thus prove. It is enough for a claimant to prove the existence of a defect in broad or general terms, such as "a defect in the electrics of the Lexus (motor car)": see paragraph 28 of the judgement of Thomas LJ in the joint appeals in Ide v ATB Sales Ltd & Lexus Financial Services v Russell [2008] PIQR P13; [2008] EWCA Civ 424 where he held:

"There were ... three possible causes - an arson attack, a defect in the wiring in the garage, and a defect in the electrics of the Lexus. Judge Charles Harris QC ... concluded that, on balance of probabilities, the fire had been caused by a defect in the electrics of the Lexus ..."

The Court of Appeal did not suggest in any way that it was incumbent on a claimant in such a case to establish and thus prove a higher degree of specificity in order to prove the existence of the relevant defect.

26. I thus reject the defendant's submission in paragraph 45 of Mr Shapiro's written opening submissions that "the claimant has to prove with a reasonable degree of specificity the respect in which the product was defective", which is in any event somewhat at odds with the submission made in paragraph 48 that:

" … while the court can legitimately infer a non-specific defect, the court should be slow to do so without cogent evidence supporting such an inference"

which submission I both prefer and accept.

27. I also reject the defendant's submission in paragraph 43 of its written opening submissions that one of the reasons it is necessary for a claimant to prove the defect with reasonable degree of specificity is that, until and unless a claimant does so, it will be impossible for a defendant to establish a defence under section 4 (1) (d) of the 1987 Act, namely that the defect did not exist in the product of the relevant time. In my judgement this is a matter of public policy. In Lexus Financial Services v Russell the Court of Appeal held that it was not necessary for a claimant to establish the identity of the defect with such a degree of specificity. However, in my judgement, if a defendant wishes to run a defence under section 4 of the 1987 Act, then it is for the defendant - on whom an evidential burden of proof will rest in relation to establishing such a defence - to identify the defect in question, which it contends that not exist in the product at the relevant time.
28. Fourth: the court should not examine the rival contentions on the issue of causation, and simply find that the one it prefers, whether because it is the more probable or the least improbable, has been proved on the balance of probabilities to be the cause of the relevant peril or accident. To do so would be to fall into the trap which befell Bingham J (as he then was) in The Popi M, where he described the first contention in the case as being highly improbable, and the second contention as being almost (if not altogether) impossible, but nonetheless found as a fact that the first contention had been proved. In his judgement in Milton Keynes BC v Nulty, Toulson LJ cited the following celebrated passage from the speech of Lord Brandon in the House of Lords in The Popi M [1985] 1 WLR 948 at pp 955-6:

"My Lords, the late Sir Arthur Conan Doyle in his book 'The Sign of Four' describes his hero, Mr Sherlock Holmes, as saying to the latter's friend Dr Watson: 'How often have I said to you that, when you have eliminated the impossible, whatever remains, however improbable, must be the truth?' It is, no doubt, on the basis of this well-known but unjudicial dictum that Bingham J decided to accept the ship-owners' submarine theory, even though he regarded it ... as extremely improbable. In my view there are three reasons why it is inappropriate to apply the dictum of Mr Sherlock Holmes … to the process of fact-finding which a judge of first instance has to perform at the conclusion of the case of the kind here concerned. The first reason is one which I have already sought to emphasise as being of great importance, namely that the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases however in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take. The second reason is that the dictum can only apply when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated. That state of affairs does not exist in the present case ... The third reason is that the legal concept of proof of a case on a balance of probabilities must be applied with common sense. It requires a judge at first instance, before he finds that particular event occurred, to be satisfied on the evidence that it is more likely to have occurred then not. If such a judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, then a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense."

29. Toulson LJ continued his judgement in Milton Keynes BC v Nulty as follows:

"33. Lord Brandon concluded … that the judge ought to have found simply that the shipowner's case was not proved.

34. (Following the passage I have already cited)

As Lord Mance observed in Datec Electronic Holdings Ltd v United Parcel Service Ltd [2007] 1 WLR 1325 … there is an inherent risk that a systematic consideration of the possibilities could become a process of elimination "leading to no more than a conclusion regarding the least unlikely cause of loss", which was the fault identified in The Popi M. So at the end of any such systematic analysis, the court has to stand back and ask itself the ultimate question whether it is satisfied that the suggested explanation is more likely than not to be true. The elimination of other possibilities as more implausible may well lead to that conclusion, but that will be a conclusion of fact: there is no rule of law that it must do so. I do not read any of the statements in any of the other authorities to which we were referred as intending to suggest otherwise."

30. Fifth: the burden of proof remains on the claimant throughout. It is for the claimant to prove the existence of a defect albeit unspecified, in the product, and that such unspecified defect caused the peril or accident which occurred, here a fire in the appliance. See the statement of principle in Lord Brandon's speech relating to " ... the party on whom the burden of proof lies in relation to any averment made by him ...", and the terms of section 2 of 1987 Act.
31. Sixth, and which to an extent is the converse of the fifth point: there is no burden of proof on the defendant. The defendant may raise, or seek to prove, an alternative cause of the peril or accident, but he does not have to prove that such was the cause of the peril or accident in question. The ultimate question remains: has the claimant proved on the balance of probabilities that the cause for which he contends was the court was of the peril or accident in question?
32. Seventh: while the court's analysis will involve a consideration of the issue of causation, namely that the defect identified and proved by the claimant was indeed the cause of the peril or injury which occurred, and thus of the loss which was sustained, the court is not required to embark upon a detailed analysis of precisely how the injury or peril was caused: see paragraph 7 of the judgement of Thomas LJ in Ide v ATB Sales, where he held:

"… Under sections 2 and 3 of the 1987 Act, if a person is injured by a product, his claim succeeds if he establishes there is a defect in the product, and that defect caused the loss, unless the defendant can rely on one of the statutory defences. In determining whether the loss or injury has been caused by a defect or by some other cause, although the process of reasoning may involve an explanation of how the defect was caused, the task of the court is simply to determine whether the loss was caused by the defect and not by another cause. As is apparent from the first of the appeals, that distinction is important and can make the task the course of one, as no doubt Parliament intended."

33. On the facts of the present case, the parties' respective contentions as regards the seat of the fire are intrinsically linked with the issue of causation: the claimant's case is that the fire originated inside the appliance, in the machinery compartment at the rear, and that such a fire spread internally within the appliance, and thereafter caused the substantial damage in the property which occurred; the defendant's case is that the fire originated outside the appliance, in some combustible material on the floor at the front, and to the left-hand side, of the freezer compartment, and that such a fire then spread to set fire to the appliance itself, which fire then caused the substantial damage in the property that thereafter occurred. It may be open to the court, in examining the respective contentions of the parties as regards the original seat of the fire, to consider the process whereby the fire spread, but I note and will have regard to the note of caution expressed by Thomas LJ that "the task of the court is simply to determine whether the loss was caused by the defect and not by another cause", and that such an approach "can make the task of the court a simpler one". That statement, in my judgement, resonates with paragraph 19 of Thomas LJ's judgement, where he held that "... as this was a claim under the Consumer Protection Act, it was ... unnecessary to ascertain the cause of the defect."

E: The key elements of the (substantially) agreed expert opinion evidence

34. By reference to their first, and substantial, joint statement dated 18 October 2013, Dr Suddards on behalf of the claimant and Mr Bullen on behalf of the defendant are agreed on the following matters:

(1) As regards the area of the origin of the fire: Dr Suddards considers the evidence is equally consistent with the fire originating inside the appliance, in the machinery compartment at the rear, and originating outside the appliance; while Mr Bullen considers the evidence indicates the fire originated outside the appliance, at its front. See paragraph 7.1.1 where they state:

"Dr Suddards is satisfied that the pattern of damage is equally consistent with either a fire originating in the machinery compartment at the rear of the appliance, or one starting at low-level immediately outside the front of the appliance."

And then see paragraph 7.1.2 where they state:

"Mr Bullen considers that the presence of fire at low-level at the front of the appliance and the associated damage patterns indicate an origin of fire at the front of the appliance, rather than in the machinery space."

(2) As regards the cause of the fire: in paragraph 8.2 they state:

"We agree that if the fire originated inside the machinery compartment of the fridge freezer, the most likely cause, and indeed the only plausible cause, of the fire is an unidentified electrical fault with the fridge freezer."

Then in paragraph 8.3 they state:

"We agree that if the fire originated immediately in front of the left-hand side of the fridge freezer, then the most likely cause of the fire is carelessly discarded smokers materials."

(3) As regards whether there is any evidence of any defect in the appliance, at paragraph 5.10 they state:

"We agree that despite a careful search for indications of fire causation and fire development patterns, and for indications of electrical damage, no residual physical evidence of any causal defect (or any other form of electrical damage) was found within the components in machinery compartment or elsewhere on the appliance."

F: Analysis of the evidence, both expert opinion and of fact

35. Having considered the legal principles which are engaged, and noted the key elements of the expert opinion evidence which are agreed, I make the following findings of fact as regards the origin or seat of the fire:

(1) I accept the joint opinion of the experts (see paragraph 4.6 of their first joint statement) that there was a quantity of combustible material immediately outside the appliance, namely to the front of the appliance and to the left-hand side, in front of the freezer compartment.

(2) I accept Mr Bullen's opinion (see paragraph 7.2.2 of the first joint statement) that this combustible material ignited first.

(3) I accept Mr Bullen's opinion, and thus prefer it to that of Dr Suddards in so far as it is necessary to do so, that the natural airflow through the appliances from front to back, and as a consequence the natural path of fire would also be from front to back: see again paragraph 7.2.2 of the first joint statement.

(4) I accept their joint opinion that the location of the most severe damage is to the front, and to the left-hand side, of the appliance, and thus not in the machinery compartment at the rear: see paragraphs 4.4 and 5.2 of the first joint statement.

(5) I accept the defendant's submission in paragraph 7.4 of its closing written submissions that the evidence was to the effect that "the insulating material under the fridge compartment was not particularly burned and the fridge compartment was only damaged by smoke. By contrast the bottom of the freezer compartment was very badly burned as was the inside of the freezer compartment", and the submission "that suggests a fire spread out from the area in front of the freezer compartment at the front left corner of the fridge."

36. To the extent that such evidence is inconsistent and or in conflict with any evidence of the claimant, then I prefer the evidence of either both the experts when expressing their joint opinion, or that of Mr Bullen when expressing his own opinion, to that of the claimant.
37. In this regard I found the claimant to be a less than impressive witness. I take into account, and give due credit for, the fact that the claimant was considerably exercised by the whole matter at the time; he stated (DG/68) that he found the immediate events and their immediate aftermath, for example dealing with loss adjusters, to be shocking and traumatic. However, his recollection of the facts was at odds and inconsistent with the conclusions of the experts in relation to two specific and important matters of fact:

(1) His recollection that there was nothing left in front of the fridge freezer when he and his parents left the property at about 6pm (DG/13) was simply at odds and thus inconsistent with the agreed evidence of the experts to the contrary effect, which evidence I prefer and accept; and

(2) His recollection that the fridge door was open when he arrived at the scene on New Year's Day 2010 is inconsistent with the evidence of his own expert, Dr Suddards, who stated in paragraph 6.12 of his report (page 1/318):

"It was not until Mr Bullen and I conducted our second joint inspection and undertook a further detailed examination of the doors and appliance cabinet that we uncovered evidence which revealed that the doors had in fact remained attached and in the closed position during the fire."

I prefer Dr Suddards' evidence on this issue to that of the claimant.

38. Mrs Hufford, the claimant's mother, also gave evidence. I find that she was also simply incorrect in her recollection that there was nothing in front of the appliance when she left the property on New Year's Eve. Her evidence was as follows (DG/20):

"Q: Do you recall seeing anything in front of the fridge freezer?

A: No: there was nothing there."

Mrs Hufford also stated that she did not remember seeing an ashtray on the work surface above the washing machine. She was simply incorrect in her recollection: see photographs K, L & M which clearly show that there was an ashtray left on top of that work surface, which is at right angles and close to the front of the appliance.

39. Therefore on these important issues of fact I found both the claimant and his mother to be less than reliable witnesses. As already stated, to the extent that their evidence is inconsistent with the evidence of the experts when expressing their joint opinion, or of either of them when expressing their own opinion, then I prefer the relevant evidence of either expert to that of the claimant and/or his mother.
40. I turn now to consider some of the other aspects of the evidence.
41. I find as a fact that there was nothing wrong with the appliance at any time before New Year's Eve 2009. There is therefore an important distinction to be drawn between the facts of the present case and those in Lexus Financial Services v Russell, where there was clear evidence of a pre-existing intermittent and unexplained electrical fault in the motorcar.
42. I also find that neither the evaporator coil, nor the defrost heater, had anything to do with the fire, and furthermore that the product safety notice that was issued in relation to those two items was completely irrelevant to the issues involved in the present case: see paragraphs 5.5 and 5.13 of the first joint statement.
43. Further, I accept the joint opinion of the experts as expressed in paragraph 5.10 of the joint statement that:

"… despite a careful search for indications of fire causation and fire development patterns, and for indications of electrical damage, no residual physical evidence of any causal defect (or of any other form of electrical damage) was found within the components in the machinery compartment or elsewhere on the appliance."

44. Drawing the threads of paragraphs 41-3 together I therefore find:

(1) there was no defect in the appliance at any time before New Year's Eve 2009;

(2) there is no evidence of their having been any defect in the appliance following the experts' careful examination of the appliance after the fire; and

(3) the claimant cannot, and does not, point to any defect in the appliance which caused the fire; for the reasons already explained, while it is not necessary for the claimant to do so in order to succeed in the case, the absence of any such explanation is a matter I am entitled to take into account in my overall assessment of the evidence in the case.

45. Furthermore, in this case there was no direct evidence from any witness who saw the fire ablaze, either when it started, or as it developed. When the claimant arrived on the scene on New Year's Day, the fire had already burnt itself out. This is another, and important, respect in which the evidence in the present case is of a different nature to that in Lexus Financial Services v Russell, where there was very clear evidence from the claimant's daughter who actually saw the fire in the garage.
46. In its letter dated 9 July 2010 (page 1/13 -4) the Leicestershire Fire and Rescue Service provide "the following details from our fire report". The actual fire report is not in the trial bundles. Under the heading "Cause" the text provides:

"Most likely cause motive: Accidental

Most likely cause: Fault in equipment or appliance

Ignition source: Fridge/freezer."

The experts jointly interviewed Watch Manager Payne on 11 September 2012, and stated in their joint statement as follows:

"3.3 We note that WM Payne did not conduct a forensic investigation into the cause of the fire, or carry out a detailed consideration of the pattern of fire damage.

3.4 At interview, he considered that as part of the normal investigation process, he would have looked for evidence of smoker's materials, ashtrays and rubbish bags. However WM Payne could not specifically recall what he had asked Mr Hufford about smoking habits and waste disposal practices. Likewise, he could not recall the condition of the floor around the fridge freezer, or if there was any debris to suggest a rubbish bag or any other combustible material had been stored in this area prior to the fire."

I accept the experts' joint opinion that the initial opinion of the fire service, as set out in the text of that letter, was not an opinion derived from any forensic investigation into the cause of the fire, or from any detailed consideration of the pattern of fire damage. To the extent that the initial opinion of the fire brigade differs from either the experts' joint opinion, or the opinion of either of them, then I prefer such opinion of the experts to that of the fire service.

47. Both experts considered the evidence of the aftermath of the fire in order to consider both its origin and how it had developed:

(1) They were agreed that "the most severe damage to the fridge freezer was at the left hand side of the appliance which included the freezer compartment and left-hand side of the machinery compartment": see paragraph 5.2 of their first joint statement;

(2) They were also agreed that "the most severe damage to the freezer compartment was at the base of the front left hand half of the compartment, and the bottom of the door and left-hand side. In these areas the foamed plastic insulation had been in part destroyed by fire, and the paint had variously burned or blistered on the appliance case": see paragraph 5.3 of the first joint statement;

(3) Dr Suddards made the point that "in the aftermath of such a fire, the most severe damage will not necessarily indicate the area of fire origin": see paragraph 7.1.1 of their first joint statement; this point was put to Mr Bullen in the course of his cross-examination, and he stated (DG/63):

"Q: The area of greatest damage is not necessarily the seat of the fire?

A: It all depends on the particular case

Q: If the fire had started at the front left hand of the appliance, would that not have caused burn marks further up the freezer door?

A: Not necessarily. The key point is joining the damage to the front of the appliance and the damage to the wall."

Based on that evidence from both the experts, I find that the area of the greatest severity of the fire is not of itself determinative of the location of the origin of the fire, although it is a factor to be taken into account in considering where the fire originated.

(4) In the course of his cross-examination, Mr Bullen was asked to look at the evidence of burning to the walls both to the left-hand side and behind the appliance, as shown in the photograph at page 1/285. He stated (DG/64):

"Q: Refer to the photographs at pages 1/284 and 1/285

A: What happened within the freezer was a slow desultory fire over a long period of time. It was not going to cause intense heating effects remote from the steel.

Q: It would cause blistering to paint and plaster on the wall?

A: No, I don't agree. You only have to look at the pattern marked 'A' to see that it is not caused by fire within the appliance, but by something to the bottom left of the appliance."

I accept that evidence, and thus find that the evidence of the aftermath of the fire is consistent with the fire having originated outside and to the front of the appliance. In those circumstances, I do not accept Mr Crowley's submissions as set out in paragraph 27 of his written closing submissions.

(5) The experts were agreed that there was a marked difference between the extent of the damage within the machinery compartment at the rear of the appliance: to the left-hand side of the machinery compartment there was relatively severe damage; in contrast, to the right-hand side there was either little or no damage.

(6) In particular, there was no evidence to indicate that the origin of the fire was in, or associated with, the PCB in the machinery compartment. In this context I accept Mr Shapiro's submission at paragraph 7.7 of his written closing submissions.

(7) Looking at the evidence as a whole, I prefer Mr Bullen's opinion that the evidence of the way the fire occurred, and its effect on material both within and without the appliance, including the damage to the adjacent walls, is consistent with his general opinion that the fire originated outside and to the front of the appliance. Dr Suddards was not able to identify any particular matter which indicated that it was probable that the fire originated inside the appliance within the machinery compartment at the rear; instead, the highest he could put it was that the evidence as a whole was equally consistent with the fire originating outside and to the front of the appliance (as Mr Bullen contended), as with the fire originating inside within the machinery compartment at the rear of the appliance (as Dr Suddards contended).

G: Incidental matters

48. There are two further and/or incidental matters about the claimant's case which give cause for concern:

(1) In their pre-action protocol letter of claim dated 16 May 2012 the claimant's solicitors wrote (page 2/478) in the section headed 'summary of facts' as follows

"At around 17.00 on 1 January 2010 there was a significant fire at the property emanating from the fridge freezer. The claimant discovered the fire with flames coming from the fridge freezer ..."

That was a significantly inaccurate account of the facts. The claimant's own evidence was that by the time he returned to the property on New Year's Day the fire had burned out; indeed the property was dark, and he realised there was water on the floor (DG/15-6). In paragraph 40 of his witness statement dated 22 October 2013 (page 1/62) he stated "it was obvious there had been a fire", not that a fire was alight or ablaze when he returned to the property; in paragraph 42 of his witness statement he stated that "I discovered smoke and not flames. The house was full of blackness ... I could not feel the heat of the fire ...". In his oral evidence at trial, to his credit, when the claimant was asked whether that account in the letter of claim was correct he stated that it was not (DG/18). In his closing oral submissions on behalf of the claimant, Mr Crowley submitted that the court should not make any adverse finding as regards the claimant as a result of such inaccuracy in the letter of claim, and I do not do so. Nevertheless it remains the case that a materially inaccurate account of the facts was given by the claimant's solicitors in the letter of claim, for which inaccuracy no explanation has been given.

(2) Until the last day of the trial the claimant had failed to disclose the attendance notes which Dr Suddards had prepared following his various conversations with and/or interviews of the claimant on 13 January 2010, 18 January 2010 and 24 June 2010, and finally, in company with a representative of the claimant's solicitors, on 2 November 2012. As regards the last of those attendance notes - rightly in my judgement - no claim to privilege was made on behalf of the claimant. When considering this aspect of the case I postulated that the reason why these attendance notes had not been disclosed was because the claimant's solicitors had simply not enquired of Dr Suddards whether or not he had any such documents. I am prepared to accept that this was indeed the reason why these documents had not been disclosed at appropriate time, and much earlier in the case. Their late disclosure led to the recalling of the claimant. Again, I make no adverse finding as regards the claimant himself; however it is another unsatisfactory aspect of the way in which the claimant's case has been conducted.

H: Overall conclusion

49. Standing back and looking at the evidence in the whole, I find that the claimant has not discharged the burden of proof which rests on him to prove either (a) that there was a defect in the product in question; or (b) that the seat or origin of the fire was in the machinery compartment at the rear of the appliance as he alleges.
50. In paragraphs 55-6 of his written opening submissions on behalf of the claimant, Mr Crowley submitted that it was for the court "to look at the full picture", and then cited 4 matters of fact in support of that submission, each of which derived from the evidence of fact which was to be led from the claimant and/or his mother. However Mr Crowley did not include within his list of matters which he submitted made up "the full picture" any evidence which derived from the expert witnesses in the case. In my judgement it is necessary to have regard to both the evidence of fact and the expert opinion evidence in the case in order "to look at the full picture".
51. Turning to consider the alternative cause of action in negligence: the facts as I have found do not provide the basis of a claim against the defendants in negligence. Even if the claimant had established the existence of a duty of care, the evidence does not prove any breach of such a duty. Given that the claimant has failed to prove either (a) that there was a defect in the product in question; or (b) that the seat or origin of the fire was in the machinery compartment at the rear of the appliance as he alleges, the mere fact of a fire involving the appliance does not mean that this is a case where the maxim res ipsa loquitur applies.
52. In those circumstances, the claim fails.

DG; 09.07.14