Scottish Court of Session Decisions

Pursuer: O'Brien; Digby Brown LLP

Defenders: Balfour; Simpson & Marwick

Third Party: M McGregor; HBM Sayers

30 July 2013

Introduction

[1] The pursuer carries on business as a golf professional at Gourock Golf Club. In the course of that business he operates a retail golf shop in premises there which are provided to him rent-free by the club. The pursuer owns the stock in the shop. During the early hours of Monday 10 January 2009, a battery powered golf trolley which was temporarily stored in the shop caught fire, causing extensive fire and smoke damage to the pursuer's stock. The trolley had been sold to the pursuer by the defenders and was manufactured and supplied to the defenders by the third party. Quantum of the pursuer's loss and damage was agreed at £34,000 inclusive of interest.

Description of the trolley

[2] The Masters MT-E510 golf trolley is equipped with a 150 watt motor powered by a 12 volt battery. It has two large rear wheels and a smaller front wheel and can be folded for transportation, for example in the boot of a car. The motor is attached to the middle of the axle between the two rear wheels, with the gearbox located near the left wheel. The battery, which is supplied by the manufacturer along with the trolley, sits in a bag (for ease of carrying) on a plastic tray above the axle, near the right wheel. It can be removed for charging by disconnecting a lead, i.e. not by disconnecting the battery terminals. When the battery lead is connected, the system is energised. Forward motion of the trolley is controlled by a rotary on-off speed control switch in the trolley handle. When supplied, the trolley has a 12-month warranty and the battery has a 6-month warranty. The trolley is supplied with a user manual that includes a number of "do's and don'ts" with which the user is advised to comply in order to avoid damage to the trolley or to the battery. One of these is in the following terms:

"Connecting to a poorly conditioned battery with a voltage below 10.5V will cause the trolley to lose its speed. It will also cause damage to the transistors in the controller box and could result in overheating."

[3] Attached beneath the plastic battery tray there is a control box containing a printed electrical circuit board mounted on a metal plate. Two black and red section conductors run from terminals on the circuit board to the battery and to the motor. The underside of the control box has a thick black plastic cover designed to protect the contents of the control box from damage by impact or by ingress of moisture.

[4] The Masters MT-E510 trolley is manufactured by the third party in China and transported to the defenders in containers. Mr Hugh Sims-Hilditch, the third party's managing director, explained in evidence that trolley components are inspected before assembly. After assembly but before shipping, the following checks are carried out:

- that the electronics are working;

- that the trolley runs in a straight line;

- that the trolley is capable of carrying a measured load on a predetermined slope.

If a fault is identified it is rectified before shipping. The third party has been supplying trolleys to the defenders since about 2006 or 2007. In that time it has supplied 8,500 trolleys of differing specifications. The present case was the first report Mr Sims-Hilditch had received of a trolley catching fire. Other problems had been identified in the past, such as mud causing damage to the bearings in the trolley wheels, and with the speed control in the handle. The third party had tried to produce engineering solutions to these problems. There was no formal system for complaints to the defenders about trolleys to be relayed to the third party, and members of the public who purchased trolleys were never in direct contact with the third party.

[5] The defenders' warehouse manager, Mr William Denyer, gave unchallenged evidence that trolleys would arrive from the third party in printed boxes, taped together in batches of about six. On arrival the seals would be checked and the goods would be palletised, counted and stored. The boxes containing the trolleys (and batteries) would not normally be opened before onward delivery to a purchaser such as the pursuer.

Circumstances prior to the occurrence of the fire

[6] The trolley with which this action is concerned was one of three purchased by the pursuer from the defenders and sold to customers of his shop. This particular trolley had been sold about three or four months before the date of the fire to a club member named Euan McGregor. For reasons which were not explained, Mr McGregor did not give evidence at the proof although the pursuer indicated that he was still an active member. The pursuer knew Mr McGregor well and was aware that he played golf every Saturday and perhaps also one evening during the week. According to the pursuer, Mr McGregor called him during a round of golf and explained that the trolley had stopped at about the 12^th or 13^th hole. Mr McGregor told the pursuer that he had been using the trolley for a few months, during most of which time it had been going "absolutely fine" (the pursuer's words), but that he had felt for a few rounds that it had been struggling to the extent that he was almost having to push it round the course. The pursuer apologised and, as the trolley and battery were both still under warranty, he asked Mr McGregor to bring the trolley to the shop to be returned to the defenders. The date of this conversation is unclear. In his evidence to the court, the pursuer stated that it took place on the Thursday evening (6 August) before the fire. However, in a statement given two days after the fire to Mr Douglas Grant, a fire investigator who gave evidence and to whom I refer below, the pursuer is recorded as having stated that Mr McGregor had contacted him on Saturday 8 August, having last charged the battery at home the day before. This conflict was not pursued and remains unresolved.

[7] In any event, Mr McGregor brought the trolley into the pursuer's shop on Sunday 9 August. The pursuer, who had no engineering expertise, had a quick look at the trolley but could not see anything wrong with it. He told Mr McGregor that he would send it back to the defenders and would provide him with a replacement to use in the meantime. The pursuer then left the trolley sitting in the shop overnight. The rotary on-off switch was in the "off" position. In his evidence in chief the pursuer stated initially that he was certain that the battery was disconnected; however, having been referred to the statement he gave to Mr Grant in which he had stated that the battery had been left connected to the trolley, he accepted that this was correct. It was common ground between the expert witnesses that the fire could not have occurred unless the battery had been left connected, and I so find. At about 7.00 am on Monday 10 August 2009 the fire alarm in the shop activated, a fire was discovered, and the emergency services were called. After the fire had been extinguished, attention focused upon the trolley as having been the seat of the fire. Parts of the trolley, including the battery terminals, were found to be undamaged. However, the battery base plate and the plastic casing of the control box were missing and were presumed to have been destroyed in the fire. The metal plate to which the circuit board had been attached was discovered among debris in a severely fire-damaged condition. The terminals on the plate could still be identified but the printed circuits had been burned away.

The cause of the fire: expert evidence

[8] The pursuer led evidence from Mr Douglas Grant, a senior investigator with International Fire Investigators and Consultants Ltd, Glasgow. Mr Grant had served 32 years with Strathclyde Fire & Rescue, obtaining the rank of Divisional Officer before his retirement in 1998. He is a Graduate of the Institute of Fire Engineers. He was instructed by the pursuer's insurers to attend at the locus on Wednesday 12 August 2009. He took photographs and, as already noted, a statement from the pursuer, and produced a report dated 19 August 2009. He took possession of the fire-damaged golf trolley and the remains of the metal plate. The third party led evidence from Mr Daniel Pointon, a consulting scientist with Burgoynes, Glasgow, who has 23 years' experience in fire investigation. He is a Chartered Physicist and a Member of the Institute of Fire Engineering. He was instructed in August 2012 and produced a report dated 23 November 2012. His investigations included examining the trolley (which was produced in court for the proof) and discussing the case with Mr Grant. Mr Pointon did not meet the pursuer and neither Mr Grant nor Mr Pointon met Mr McGregor. It was common ground between the experts that the fire had originated in the electrical circuitry of the trolley and not in the battery. The issue was what had caused the fire to develop.

[9] Mr Grant described the fire as a "slow, smouldering event" in its initial stages which took all night in the shop to pass through the transition from overheating of a component within the control unit to flaming combustion. In his opinion the fire was the result of a manufacturing defect. Because of the extent of the damage to the trolley and the absence of some of the parts, it was not possible to be sure what the defect had been: it could have been a poorly constructed circuit board; a defect within the circuit board; a poor connection; loose cabling; or wiring with insufficient capacity for the load. Mr Grant agreed that the choice of cause lay between a manufacturing defect and damage caused to the control box in the course of use of the trolley by its owner. He regarded the reported description by Mr McGregor of a fault developing progressively after 2-3 months of trouble-free use as consistent with a manufacturing defect. The trolley was still relatively new and this problem could not be regarded as fair wear and tear. If a weakness develops in an electrical circuit it will become progressively more severe with continued use. Mr Grant did not consider it likely that the electrical circuitry had been damaged in the course of use of the trolley. The control unit was protected in front by a cross-member bar, it was attached to a metal plate and was protected underneath by robust plastic casing. The motor was located at a lower level than the plastic casing containing the control unit; if the axle area of the trolley had been damaged by misuse it would have been reasonable to expect the motor to show signs of such damage, which it did not. In cross-examination, Mr Grant fairly accepted that his investigation had been restricted to ascertaining where the fire started and that further information regarding the owner's use of the trolley during the period since purchase would have been helpful in reaching a conclusion as to the cause of the fire.

[10] Mr Pointon agreed that the overheating within the control unit must have occurred over a period of hours, although he took issue with use of the word "smouldering" as descriptive of the process leading to ignition. In his opinion, without being able to identify the precise cause, the nature of any defect was unclear. It was not possible to distinguish between a fault initiated by a manufacturing defect, a fault initiated due to prolonged connection to a faulty or flat battery, or a fault caused by mechanical damage to the control box by the user. Choosing from among these three possibilities would be speculative. In order to reach an informed view it would be necessary to question the user more closely about the development of the problem. A progressive fault could develop for any of the above reasons. A manufacturing defect would have been more likely to manifest itself immediately rather than after two or three months of satisfactory use. Mechanical damage during use was a possibility because the plastic cover could crack or puncture, for example as a result of impact with rock. This might allow water ingress, causing corrosion which would lead in turn to resistive heating, becoming hot enough to ignite plastic. Such damage might not be obvious on casual inspection. He accepted that the plastic cover was fairly robust and would not crack easily but it could be damaged if, for example, the trolley was dropped off a kerb at an angle. The wiring could also be damaged if care was not exercised while the trolley was being lifted into or out of a car boot: snagging a wire could damage a terminal in the control unit. Mr Pointon was critical of a design in which damage could occur as a result of a user leaving the battery connected through forgetfulness. The simplest explanation was that there had been damage during use but neither a manufacturing defect nor damage during use was more likely than the other.

Submissions on behalf of the parties

Argument for the pursuer

[11] Counsel for the pursuer based his case against the defenders upon section 14 of the Sale of Goods Act 1979. In terms of section 14(2), where a seller sells goods in the course of a business, there is an implied term that the goods supplied are of satisfactory quality. Subsection (2A) provides that goods are of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all other relevant circumstances. Among the aspects of quality of goods listed in subsection (2B) as potentially relevant are fitness for all purposes for which goods of the kind in question are commonly supplied, safety and durability. It was submitted that the defenders were in breach of the contractual term implied into their contract with the pursuer by section 14. A trolley which, during its anticipated lifespan, developed into a fire hazard in the course of ordinary use was not of satisfactory quality. The question was therefore whether the trolley was defective in that respect when supplied or whether the fault developed as a result of misuse by its owner, Mr McGregor. Counsel invited me to prefer the view of Mr Grant that the evidence pointed more strongly to the existence of a defect at the time of supply. The scenarios suggested by Mr Pointon for damage to the plastic cover protecting the control unit, namely contact with a rock or a kerb, or careless lifting into or out of the boot of a car, were all within the normal range of use of the trolley. It would be surprising if a properly designed trolley could become a fire hazard as a result of such an occurrence. A golf trolley which could not withstand travel over rough ground would not be of satisfactory quality. There was no positive evidence of misuse of the trolley, and in particular no impact damage to the left side of the trolley which was undamaged by the fire. The third party's case depended upon Mr McGregor having used the trolley in a manner which caused damage yet without that damage being observed by the pursuer when the trolley was returned to him. Any conclusion as to misuse by Mr McGregor would be entirely speculative. Mr Pointon had accepted that the account given by Mr McGregor to the pursuer was consistent with the existence of a manufacturing defect.

Argument for the defenders

[12] Counsel for the defenders submitted that on the evidence before the court there were only two possible scenarios: either there was a manufacturing defect or it was not possible to determine what caused the fault to develop that led to the fire. On the first scenario the defenders and the third party were both in breach of contract and the defenders had a right of relief against the third party. On the second scenario the pursuer's case failed and the defenders were entitled to be assoilzied. There was no scenario in which the defenders were liable to the pursuer without a right of relief.

Argument for the third party

[13] Counsel for the third party accepted the defenders' proposition that there were no circumstances in which the defenders could be found liable to the pursuer without a right of relief by the third party. It was submitted, however, that the pursuer had failed to discharge the onus of proving that the fault which caused the fire to develop was caused by a manufacturing defect. The only witness led at the proof who had seen the trolley before the fire was the pursuer. His evidence that he had a quick look at it when Mr McGregor brought it in was insufficient to establish that there was no damage to the plastic cover. In the absence of evidence of Mr McGregor, which could apparently have been led, the court should be slow to decide the case in the pursuer's favour on his evidence alone. Reference was made to Morrison v J Kelly & Sons Ltd 1970 SC 65, Lord President Clyde at 79, and to McLaren v Caldwell's Paper Mill Co Ltd 1973 SLT 158, Lord Kissen at 165. The expert witnesses were agreed that there were two possibilities: a manufacturing defect or damage during use. Mr Pointon's view that the evidence was insufficient to entitle the court to find either possible cause more probable than the other should be preferred. Mr Grant could not point to any positive indication that a manufacturing defect was more likely. It was not the case that the fault should be presumed have been caused by a manufacturing defect unless proved otherwise: it was for the pursuer to demonstrate that this was a more likely cause than damage during use. Reference was made to McGlinchey v General Motors UK Ltd [2012] CSIH 91, Lord Justice-Clerk Carloway at paragraphs 32-36, referring in turn to the well-known dictum of Lord Brandon of Oakbrook in Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 1 WLR 948 questioning the validity of the observation attributed to the fictional detective Sherlock Holmes that once the impossible had been eliminated, whatever remains, however improbable, must be the truth.

Decision

[14] The issue for the court, as it appears to me, is whether the evidence is such that I should conclude, on balance of probabilities, that the fire was caused by a manufacturing defect in the electrical circuitry of the trolley. This is not, in my view, a case in which I am being asked to hold that an event resulted from some inherently improbable cause, as was the position in The Popi M and in McGlinchey. The parties in the present case are agreed that the choice lies between a manufacturing defect and damage to the control box during use of the trolley. Neither of these causes could, in my opinion, be described as inherently improbable. The question is whether the evidence establishes that the former is more likely than not to have been the cause of the fire. I bear in mind that it is for the pursuer to prove, on balance of probabilities, that the trolley was not of satisfactory quality when supplied, and not for the defenders to prove that it was. As Lord Brandon observed in The Popi M at page 955-6:

"...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."

[15] In the present case, evidence is lacking in two important respects. Firstly, because of fire damage, the control box and circuit board were not available for inspection to identify the precise reason why an electrical fault developed. The probable mechanism of resistive heating resulting in outbreak of fire could have occurred as the consequence of either a manufacturing defect or damage during use, and is too general a description to found a distinction between the two. Secondly, Mr McGregor was not called as a witness to describe his use of the trolley during the months prior to the fire. This had two important consequences: in the first place his evidence might have assisted in establishing or, alternatively, eliminating misuse by him as a likely cause of the fault in the electrics. In the second place, his account of the progression of the difficulties that he experienced with the trolley might have afforded a more detailed factual basis for the expression of expert opinion than the brief second-hand report provided by the pursuer. In this regard I do not regard the dicta cited from Morrison v J Kelly & Sons Ltd and McLaren v Caldwell's Paper Mill Co Ltd as directly in point: these cases were concerned primarily with the significance of a failure to lead the evidence of an available corroborating witness following the abolition in 1968 of the requirement for corroborative evidence in civil cases. The situation in the present case is rather different: Mr McGregor, had he been called, would not have been a witness corroborative of the pursuer's evidence but rather a witness speaking to matters of fact of which the pursuer had no first-hand knowledge. If anything, however, the absence of such evidence seems to me to cause greater difficulty than the absence of a witness called to corroborate first-hand evidence given by a party.

[16] I have carefully considered the factual evidence (such as it was) and the opinion evidence led by the parties, and I have concluded that there is no sufficient evidential basis upon which I could hold that it is more likely than not that the fault in the trolley's electrical circuit that resulted in the fire was caused by a manufacturing defect. Mr Grant's view that such a defect was the more likely cause was based upon the time taken for problems with the trolley to emerge, the robustness of the plastic cover of the control box, and on the fact that it was further from the ground than the motor which showed no sign of damage during use. The submission by counsel for the pursuer proceeded upon the basis that one would expect a properly designed trolley to be able to withstand being taken over some rough terrain, up and down kerbs, and in and out of the boot of a car without sustaining damage that could result in it catching fire. I agree that one might have such an expectation, and the evidence of Mr Sims-Hilditch that this was the only case of fire of which he was aware, having manufactured and supplied around 8,500 trolleys, might suggest that that expectation has been met. I accept Mr Pointon's evidence that the plastic cover could sustain damage in various ways leading to either mechanical damage to or corrosion of the electrical circuit and/or components inside; this was accepted as a possibility by Mr Grant. In the absence of Mr McGregor's evidence I do not consider that I am entitled to make any assumption as to whether the plastic cover is likely to have sustained damage in the course of use by him. The occurrence of such damage would not necessarily imply misuse, but in any event I cannot rule out misuse. The fact that the motor sat closer to the ground than the plastic cover does not in my opinion justify a conclusion that the latter could not have been damaged if the former showed no sign of damage. The timescale within which the problems with the trolley became manifest appears to be equally consistent with either possible cause. I should note that neither party invited me to regard overheating of the electrics due to connection to a battery running at a low voltage as a separate possible cause, presumably because it is difficult to see how operation at low voltage could occur other than as a result either of a manufacturing defect or of user misuse.

[17] The case therefore appears to me to fall within the category described by Lord Brandon (above) where the party upon whom the burden of proof lies has failed to discharge that burden. In my opinion, there is nothing in the evidence placed before the court to demonstrate, on balance of probabilities, that a manufacturing defect was responsible for the fault in the electrics which caused the fire.

Disposal

[18] In the light of my opinion, I shall repel the pleas in law for the pursuer, sustain the second and third pleas in law for the defender, and grant decree of absolvitor. All questions of expenses are reserved.