Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 100

 

A683/10

OPINION OF LORD BOYD OF DUNCANSBY

In the cause

RED STAR PUB COMPANY (WRII) LIMITED & OTHERS

Pursuer;

against

SCOTTISH POWER LIMITED

Defender:

Pursuer:  Moynihan QC, Bennett;  BLM

Defender:  Hanretty QC, Middleton;  Brodies LLP

14 July 2016

[1]        In the early hours of the morning of 12 October 2005 a fire broke out in the tenement building situated at 25-31 Waterloo Street, 78 to 82 Wellington Street and 12 Wellington Lane, Glasgow.  The fire caused considerable damage to the tenement which required to be demolished. 

[2]        A few days earlier in the afternoon of Thursday 6 October 2005 a man entered the unoccupied premises known as Rabbie Burns Tavern on the corner of Waterloo Street and Wellington Street in Glasgow.  He climbed the stairs to the first floor and removed a sink from behind the bar.  He made his way back downstairs exiting onto the street carrying the sink.  He was arrested shortly afterwards by police officers.  The removal of the sink caused water to flood down into the ground floor premises known as Archie’s Bar.  One of the issues in this case is whether or not the two events are connected. 

 

The parties
[3]        There are 11 pursuers.  The first pursuer is a limited company who own and lease public houses.  They are part of the Scottish & Newcastle group of companies.  They were at the material time the proprietor of the public house known as Archie’s Bar which was situated on the ground floor and basement of the tenement.  The eleventh pursuer was the tenant of Archie’s Bar.  The other pursuers were all proprietors of individual properties within the tenement.  The defenders are Scottish Power Limited who supplied electricity to the tenement. 

 

The case for the pursuers
[4]        The pursuers allege that the fire was an electrical fault.  It either started in the defenders’ equipment as a result of water ingress or it started as a result of a fault in either the defenders’ or consumers’ electrical equipment.  In either case the pursuers say that in exercise of their duty of care the defenders ought to have cut the cable supplying electricity to the tenement.  If they had done they say that the fire would not have occurred.  The defenders accept that they owed a duty of care but deny any liability.

 

Damages
[5]        The parties agreed the question of damages in the event of liability being established and subject to pleas of contributory negligence by the first and eleventh pursuers as at 26 May 2015 as follows: 

“(a)      first pursuers:  £894,588;

(b)     second pursuers:  £777,420;

(c)      third pursuer:  £25,950;

(d)     fourth pursuer:  £25,950;

(e)      fifth pursuers:  £167,868;

(f)      sixth pursuer: £196,500;

(g)     seventh pursuers:  £95,826;

(h)     eighth pursuers:  £135,078;

(i)      ninth pursuer:  £46,542;  and

(j)      tenth pursuers:  £61,278.” 

 

[6]        Interest is to run at the rate of 4% a year from 26 May 2015 to the date of decree and at 8% per annum from that date until payment. 

[7]        The parties also agreed that the defenders should be assoilzied from the eleventh conclusion of the summons. 

 

Description of the tenement
[8]        Waterloo Street is situated in the centre of Glasgow.  It runs east to west.  At the east end is Central station.  Wellington Street runs north to south.  The tenement was a typical Glasgow stone tenement built sometime in the nineteenth century.  It faced north onto Waterloo Street.  To the east and abutting it was a red sandstone building known as Waterloo Chambers.  To the west was Wellington Street.  To the south was Wellington Street Lane.  Not including the basement the tenement was four storeys high.  There was some confusion in the evidence as to whether some of the other properties were occupied and if so whether any were residential.  Nothing turns on this point.  The tenement was an L shape with the two legs of the L fronting Waterloo Street and Wellington Street.  However there was a single storey extension to the rear of the premises bounded by Wellington Street Lane on the south and Waterloo Chambers to the east.  Accordingly at ground level the building formed a rectangle. 

[9]        The principal premises within the tenement were licensed premises known as Archie’s Bar.  It was situated on the ground and basement of the tenement.  The main entrance was on Waterloo Street but it also had a frontage and an entrance on Wellington Street.  Another licensed premises, Rabbie Burns Tavern occupied a substantial part, if not the whole, of the first floor.  Entrance to Rabbie Burns Tavern was taken from the ground floor on the corner of Waterloo Street and Wellington Street in the north east corner of the tenement.  As indicated above these premises were vacant at the time of these events.  The ground floor of Archie’s Bar formed an L shape around the ground floor entrance of Rabbie Burns Tavern.  Archie’s Bar extended to the rear of the tenement into the single storey extension on Wellington Street Lane.  There was also a fire exit in the lane which served the basement.  Between the fire exit and the corner of Wellington Street Lane and Wellington Street there was a beer hatch.  It was situated at ground level.  There were a number of vents beside the beer hatch also at ground level.  In particular there were two situated between the beer hatch and the corner of the building at Wellington Street Lane and Wellington Street. 

[10]      The main bar in Archie’s Bar was on the ground floor.  There were two distinct parts to it.  The eastern part extended from the door at Waterloo Street to the rear at Wellington Street Lane.  Entry could be taken from the street into a small hall or lobby.  From there one could turn slightly left and through into the bar or go straight ahead downstairs to the basement.  On the ground floor level there was a seating area towards the front, then the bar and beyond a food collection area and toilets.  These facilities were at the Wellington Street Lane end of the premises.  Together these formed what witnesses refer to as the “Waterloo Street side”. 

[11]      The other, and greater, part of the ground floor bar was situated in the south west of the ground floor of the tenement.  This was referred to as the “Wellington Street side”.  Access could be taken either from the Waterloo Street side or directly from Wellington Street.  Separate toilets served this side.  It was possible to operate each side separately.  Indeed during refurbishment in 2003 the Waterloo Street side had been open while the Wellington Street side was closed for some 10 weeks. 

[12]      In the basement there was a function room with a bar.  Beyond that was a kitchen which was underneath the extension in the south east corner.  To the west of that was a corridor (sometimes referred to as the “kitchen walkway”) and beyond that was a chiller and a corridor leading to an office and then into a bottle store and beer cellar.  The bottle store was a corridor which ran south along the Wellington Street frontage and then turned east along Wellington Street Lane thus forming another L shape.  At the end of the corridor was a door on the left hand side leading into the beer cellar.  Opposite on the right hand side was the beer hatch. 

 

The electrical equipment
[13]      The main electrical equipment was in the basement on the southern wall extending from the south west corner along towards the beer hatch.  A photograph taken before the fire shows a bank of electrical equipment.  It appears that some of the equipment may have been redundant at the time of the incident.  The supplier’s main cable entered from Wellington Street near the corner with Wellington Street Lane.  From there it went into a cable head (sometimes called a “cut out”) and which was fused.  From there a number of cables, known as tails, went through a metering panel into the customers main switch.  The main cable into the premises, cable head, tails and metering panel were all the property of the defenders.  All the other electrical equipment in the premises belonged to the customer.  The cable head and metering panel were on the extreme right of the wall, that is in the south west corner.  The customer’s equipment was to the left.  It appears that the metering panel and the cable head were both mounted on wooden boards fixed directly to the wall.  The cable head was above the metering panel.  The customer’s equipment on the other hand was mounted on wooden boards which stood proud of the wall. 

[14]      The cable head is believed to have been destroyed in the fire.  The pursuers produced one which was generally accepted to be very similar to the one in Archie’s Bar.  The cable entered one of three portholes in the bottom of the cable head.  In this case it is accepted that it entered the right hand porthole.  The cable has four conductors.  Three terminate in three phases – red, yellow and blue.  The fourth terminates and is earthed in a mutual block on the right hand side.  The cable head contains three fuses – one for each phase.  At the top of each fuse is a terminal.  The tails are attached to the terminals.  The tails exit the cable head through the top. 

[15]      The fuses are separated by a barrier made of paxolin which is a type of phenolic material.  The purpose of the barrier is to ensure that if there is a flashover protection is given to the other phases.  It is an insulator.  However according to Stephen Braund, an expert fire investigator, it has its weaknesses.  Under high temperature it can degrade.  It can burn or be carbonised and turn into a conductor of electricity.  Carbonisation is the formation of material based on paper or phenol when degraded by heat or fire.

[16]      The terminals are screwed into blocks of insulation made of Bakelite.  It has similar properties to paxolin.  It is also a good insulator if clean and dry.  However once it begins to deteriorate it can be damaged.  That may in turn lead to carbonisation and allow for discharges across potentials.  Insulation is required to provide a barrier between the earthed case and any of the live terminals.

[17]      Any carbonisation will damage the insulation.  That may lead to an electrical discharge.  Initially it may not be serious but it can cause further damage and may become more serious over time.  Eventually it can lead to a catastrophic breakdown and electrical arcing.

[18]      “Tracking” is an electrical discharge which occurs over the surface of the insulator between two points of differential potential.  There may be some sound associated with it and a possible visible corona in dark conditions.  It may not lead to huge problems initially but may develop over time depending on the type of insulation.  If it is ceramic then the discharge will not cause damage.  However if the insulation is a phenolic compound then it may cause damage which may be progressive.  Tracking may occur if the insulation is contaminated by dirt or moisture.

[19]      “Arcing” is a substantial discharge which occurs when a strong current jumps a gap.  The only limitation on it is the capacity of the electricity supply system.  It is a potent source of ignition.

 

Preliminary submissions
[20]      There are two legal submissions which have a bearing on the assessment of factual evidence.  It is convenient to deal with these now. 

 

Delay
Submissions for defenders
[21]      Mr Hanretty QC for the defenders pointed out that the summons in the present action was signetted the day before the expiry of the quinquennium.  The evidence in the case related to events over nine years ago.  The consequence of delay was that the recollection of witnesses had been significantly diminished.  Moreover the defenders had sought to recover documents by way of specification.  In particular they had sought to recover electrical and fire certificates as well as details of the electrical installations.  It was evident from the evidence of the pursuers’ experts that such evidence ought to have been available.  In those circumstances Mr Hanretty submitted that I ought to take into account the lapse of time in reaching findings of fact.  The generality of the approach that I should adopt was the one adopted by the House of Lords in Mackison v Borough of Dundee 1910 SC (HL) 27.  Furthermore if I was satisfied that the delay had resulted in a loss of evidence which would have been available at an earlier date every doubtful fact ought to be presumed in favour of the defenders;  Gloag, Contract 2^nd Edition 543. 

 

Submission for pursuers
[22]      In reply Mr Moynihan QC for the pursuers submitted that it could not be said, on the evidence, that the wiring schedules and other matters in combust in the specification of documents would have been available at an earlier date.  There was no evidence as to where they were kept or what had happened to them. 

 

Conclusion
[23]      I do not find that Mackison v Borough of Dundee to be of any assistance.  It involved a claim for payment for work done over a period of 40 years.  Many of the people involved were now dead.  As Lord Kinnear put it this was a mere question of fact.  Nor am I satisfied that I should take the approach outlined in the passage in Gloag.  While it is true that the experts would have found the provision of wiring schedules and fire and electrical certificates to be of assistance there was no evidence that they might have been available at an earlier date.  In a report by Royal & Sun Alliance dated 20 January 2005 on the electrical installations in Archie’s Bar the author notes that part of the installation had recently been refurbished but that no documentation, diagrams or test certificates were available.  Both Mr Clark, the representative of the first pursuers and Mr Nicholson, the eleventh named pursuer and tenant of Archie’s Bar were asked about the whereabouts of such documentation but they were unable to shed any light on the matter. 

[24]      The oral evidence was obviously affected by the long delay between the events and giving evidence.  Some assistance was gained from statements and other documents.  Otherwise I have regarded the delay as a factor affecting the evidence of witnesses to varying degrees.  I have taken that into account in assessing the reliability of witnesses in establishing the factual background. 

 

Best evidence
Submissions on behalf of the defenders
[25]      Mr Hanretty made it clear in objections in the course of the proof that he reserved his position in respect of the leading of certain aspects of evidence under the best evidence rule.  He renewed these objections in submissions.  He referred me to Professor Davidson’s work on Evidence at paragraphs 2.01 to 2.02 and authorities cited therein and to the opinion of Lord Drummond Young in Peacock Group Plc v Railston 2007 SLT 269.  There are two aspects to Mr Hanretty’s submissions.  In the first place he observed that the cable head had not been produced.  The pursuers had lodged the cable head which it was agreed was very similar to the one which had been in Archie’s Bar.  It was shown to a number of witnesses and the expert witnesses demonstrated their evidence regarding the operation of the cable head by reference to the one produced.  Mr Hanretty submitted that one of the oddities of the case was that while there were a great number of photographs there was none that demonstrated the state of the cable head after the fire.  The pursuers’ position was that the cable head had been destroyed in the fire.  However, Mr Hanretty submitted that the evidence of the pursuers’ experts Mr Braund and Mr Campbell had been to the effect that even with a significant discharge of electricity what might have been anticipated was the melting of the cable head rather than its total destruction.  What was absent was any clear evidence of a regime for the recovery of relevant material during the demolition of the building following the fire.  The defender’s expert, Mr Jones had given evidence that subject to the views of insurers and interested parties he would anticipate a fire investigator supervising demolition works.  Mr Braund, who was instructed on 14 October visited the site on that date accompanied by Graeme Campbell, the other expert witness for the pursuer and Lee Masson of IFIC Limited.  As I understood Mr Henretty’s position they had the opportunity to supervise the demolition of the building but did not take it.  Mr Braund’s position in evidence was that they had left it to Reigart, the specialist demolition contractors, to decide how to go about it.  The property was in a dangerous state and the overriding objective was to ensure the safety of the site. 

[26]      The second, but related matter, relates to the remains of tails and terminals from within the cable head.  These were recovered, photographed, inspected and then apparently lost in the hands of IFIC Limited.  Mr Hanretty said that obvious issues arose in relation to the fuse carriers and installation blocks.  Moreover, when they had been photographed at the premises of IFIC Limited they had obviously been intermingled with unrelated items.  There could be little confidence as to what might properly have been recovered with reasonable care.  Mr Braund had indicated in the course of cross‑examination that he would have expected further fuses to be present within the facility of the cable head itself. 

 

Submissions for pursuers
[27]      Mr Moynihan submitted that the best evidence rule is not absolute.  Secondary evidence may be relied upon if the primary evidence is lost without the fault of the party relying upon – an absence of due diligence – and without prejudice of the other party;  Peacock Group Plc v Railston. 

[28]      So far as the tails and terminals are concerned there was no prejudice.  These were shown in the photograph numbers 69 and 70 attached to Mr Jones’s report.  Mr Jones had had an opportunity to inspect them along with Mr Masson in December 2005 before they were lost and he had apparently done so.  All parties have been content to use the photographs and Mr Jones himself had made significant observations using them. 

[29]      Turning to the cable head the only remains that were found were the tails and terminals which were discovered in the remains of the metering panel.  No other remains were found.  Mr Braund had been unable to discover the cable head and he visited the site on 14 October.  He had been in the basement but not near the south west corner because of its condition.  Mr Campbell had entered the basement on 17 October through a gap in the south west corner but he had not seen it.  The inference that he drew was that the cable head had been destroyed.  Even if the cable head had not been destroyed it could not be said that the pursuers had not exercised due diligence in searching for it. 

 

Conclusions and decision
[30]      So far as the cable head is concerned the matter is straightforward.  There was no evidence that it was in existence after the fire.  Mr Campbell and Mr Braund were of the view that it had been destroyed.  That was challenged by Mr Hanretty.  Mr Jones stated that it could have been totally destroyed.  His point was that Mr Campbell and Mr Braund ought to have supervised the demolition in order to ensure that it was recovered.  I make comments later about Mr Jones’s evidence but I did not consider that this was a realistic suggestion given the state of the building. 

[31]      There are over 800 photographs.  None show the cable head after the fire.  The metering panel which was attached to the wall underneath the cable head was very badly damaged and the tails and the terminals were recovered from inside it.  Mr Campbell went down through a gap in the south west corner and took some photographs.  He took a very considerable risk in doing so.  Both Mr Campbell and Mr Braund made it clear in evidence that they left it to the specialist demolition contractors to decide how to go about demolition.  They were clearly right to do so. 

[32]      The remains of the tails and terminals were more of a problem.  They were recovered and then lost.  There is no fault in the pursuers directly although as I understood it IFIC Limited were investigating the fire on behalf of loss adjusters.  There is no doubt that the evidence that came from an examination of the tails and terminals, and the photographs of them, is significant. 

[33]      On the other hand it is not the one piece of evidence upon which the whole case turns.  It is one piece of a jigsaw of circumstantial evidence.  There are a number of photographs showing the condition of the tails and terminals after the fire.  These were produced and indeed reproduced in Mr Jones’s report as photographs 69 and 70.  He was able to inspect the tails and terminals in December 2005 at IFIC Limited before they were lost.  At no time did he complain that he was hampered in his investigations or in reaching his conclusions.  He had never sought an opportunity to return and physically re-exam them. 

[34]      For these reasons I have decided that the evidence relating to the cable head and of the examination of the tails and terminals by the expert witnesses as well as the photographs of them should be admitted. 

 

Archie’s Bar - tenant and landlord
[35]      The eleventh pursuer, Allan Nicholson, was the lessee of Archie’s Bar, having taken it over in 2002.  Prior to that he was, for 11 years, employed as a publican by Scottish & Newcastle.  For one year he was on his own in a private enterprise before moving to Archie’s Bar.  Since the fire he has been the publican in two other public houses before taking up his present employment as a courier driver in 2012.  Mr Nicholson gave evidence as to the circumstances leading up to the fire as well as general evidence about the state of the premises beforehand.  His evidence was in many respects unsatisfactory.  In common with other witnesses the passage of time clearly had an impact on his recollection though at times I had the impression that he found it convenient not to be able to recall details which one might expect him to retain even after nine years.  On one or two occasions I was not satisfied that his evidence was entirely truthful.  However I did not have the impression of someone deliberately embellishing his evidence.  In some instances it was not particularly helpful to the pursuers.  I also noted that Mr Hanretty was at times happy to rely on his evidence when it suited his purpose.  Accordingly I did not think that I should reject his evidence outright but treated it with some caution. 

[36]      Kenneth Clark is a property manager with the first pursuers.  In 2005 he was employed by Scottish & Newcastle Pub Enterprises as their project manager for Scotland.  He was responsible for capital investment in Scotland, specifically the acquisition and refurbishment of public houses.  He gave evidence about his attendances at Archie’s Bar on Friday 7 October and Monday 11 October and the actions that he took.  I note no particular difficulty with his evidence though it too was clearly affected by the passage of time. 

[37]      An agreement between the first and eleventh pursuers regulated the respective responsibility of the parties.  In broad terms the first pursuers was responsible for the maintenance of the estate while the eleventh pursuer was responsible for the fabric.  Clause 1.2 of the agreement provided that the operator (the lessee) was responsible for repair and maintenance but excepted from that were obligations for repair and maintenance of the structure or the repair or replacement of electric wiring up to the outlet sockets (clauses 1.2.1.1 and 1.2.1.2). 

 

Mr Allan Nicholson’s evidence
[38]      Mr Nicholson explained to the court that in effect Scottish & Newcastle owned the premises and he operated the pub as his own business.  He was required to buy their beer.  There was an agreement with them that he was responsible for the maintenance of the premises, structural matters however where for Scottish & Newcastle.  Sofar as electrics were concerned Scottish & Newcastle were responsible for the wiring and he was responsible for the appliances. 

[39]      Mr Nicholson told the court that he first learned of the water coming into the pub on the afternoon of Thursday 6 October.  He was out of the premises at the time and when he returned the Wellington Street section of the pub was ankle deep in water.  Water was coming through the ceiling and down the walls.  The ceiling was starting to bevel.  By Thursday night the water had stopped.  He had gone down to the basement but had found no damage there.  He went home and got a petrol driven pump and petrol.  He, assisted by his wife, Amanda, and Paul, a member of staff, pumped the water out onto the street and cleaned up.  He left between 9.00pm and 9.30pm that night.  At that stage there was no trouble with the electrics in the bar. 

[40]      He returned to the pub about 9.00am the next morning.  He found that the ceiling had collapsed in two places – the area above the bar and to the north of the bar both in the Wellington Street area.  There was dampness in the Wellington Street area but the Waterloo Street side seemed ok.  There was no water coming in.  He checked the basement and noted that there was dampness on the walls in the storeroom, office and the dry store.  There was no damage and the water was not running but there was a gloss of wet on those walls.  He said the whole area felt damp. 

[41]      He noticed that some of the lights were out on the Wellington Street side of the pub.  When he went to the basement he checked the main board and saw that one of the lights was out on the meter board.  Approximately six to 12 months beforehand there had been a partial power cut.  Scottish Power had come out to repair it.  They had explained to him that if he saw a light out he was to phone Scottish Power right away.  He said that he did that sometime between 9.00 and 10.00am. 

[42]      A Scottish Power engineer had come out and then others later.  The second fuse had blown while Scottish Power engineers were in the premises.  He told the court that he had had little contact with them other than showing them the electrical equipment.  He had seen the pub but only the Waterloo Street side and not the Wellington Street side.  He was able to separate the two sides by means of a large curtain which was pulled across. 

[43]      He had been in contact with David Wren the business manager at Scottish & Newcastle.  According to Mr Nicholson, David Wren had come to the premises along with Kenneth Clark.  It is clear however that although Kenneth Clark attended Mr Wren did not. 

[44]      Asbestos was found in the Wellington Street area at the point where the ceiling had come down.  Mr Nicholson thought that it was found sometime between 3.00 and 3.30pm although it appears from the evidence that it was sometime earlier.  Mr Clark had taken the decision to close the pub pending investigation.  Mr Nicholson made it clear that he thought that this was an overreaction at the time.  I had the clear impression that he was resistant to closing the premises no doubt because it would lose him business. 

[45]      Mr Nicholson left the premises on the Friday sometime between 4.00 and 4.30pm with Mr Clark.  All of the staff left either before then or with him and Mr Clark.  According to Mr Nicholson he did not go back until the Monday morning when he met Kenneth Clark outside the pub.  They went in and others arrived to take care of the asbestos.  He knew that he was unable to reopen the pub until the asbestos had been dealt with but at that stage he expected to be able to reopen the premises on Thursday or Friday.  

[46]      Mr Nicholson returned to the property on Tuesday morning.  According to him he had to let people in and out of the property.  He had contacted Scottish Power to get an engineer out as they did not have any power.  He phoned four or five times and he was told that an engineer was on their way but no one turned up.  The record showed that Scottish Power had a telephone call at 09.57 on Tuesday morning and that three electricians had been assigned to the work but then cancelled.  He said that when he contacted Scottish Power he had no appreciation of the danger in the premises.  He saw no signs of an intruder in the premises between Thursday 6 October and when he closed the pub on Tuesday 11 October.  On Tuesday night when he left he followed the same routine that he did on every other night securing the premises and setting the alarm. 

[47]      Mr Nicholson was phoned by the police in the early hours of Wednesday morning to tell him of the fire in the bar.  He immediately went there and stayed for about two hours. 

Mr Nicholson told the court that he had no knowledge of any overwiring of the fuses in the customer’s main switch.  He told the court that he did not know what the purpose of it was although he recognised the wiring outside the fuses was unusual.  Mr Nicholson was challenged in cross examination as to his knowledge of electrical equipment in general and fuses in particular.  I was not impressed with his answers.  It seemed to me that he underplayed his knowledge to the extent of attempting to mislead the court.  I came to the conclusion that as the tenant of Archie’s Bar he must have been aware of the overwiring of the fuses, even if he himself did not actually do it. 

[48]      It is clear that the overwiring of the fuse in the cable head was not a factor in the fire.  If I had found that the fire had started in the consumers’ equipment then this might have been an important factor.  At the very least I would have given serious consideration to the issues of contributory negligence and contribution in terms of the defenders 6^th and 7^th pleas in law.  

[49]      Other members of staff turned up.  Some time was spent in cross examination exploring who had turned up and why.  The suggestion was that he intended to open the pub that day and that he had instructed his staff to report for work.  Mr Nicholson explained that the fire was big news at the time and that various members of staff had come to offer support or simply to see what was happening.  In the case of one member of staff he explained that she worked in the evenings and that her day job was nearby.  He thought she might have come on her way to work.  I thought that explanation was reasonable and was not inclined to the view that Mr Nicholson intended to open on Wednesday.  Even if he did I am not sure of its relevance.

 

Mr Clark’s evidence
[50]      Mr Clark attended the premises on the morning of 7 October.  He identified the area of the pub which had been affected by water.  It was an area largely over the end of one portion of the bar in the Wellington Street frontage extending up towards the wall abutting Wellington Lane.  He said that it was about 18 or 20 square meters.  He understood that the cause of the damage had been as a result of a sink having been stolen from the first floor of the tenement which was then empty.  That had occurred on 6 October.  By the time he got there the following day the water had been turned off.  There was some residual dripping through light fittings.  Two tiles had come off the ceiling.  There was damage to electrical fittings;  some light fittings were lying on the floor and lamps had been blown.  The power had been cut off but there was still power in the Waterloo Street area though some lights were off there as well. 

[51]      Mr Clark said that two Scottish Power engineers were working in the basement replacing what he was told was a “cracked cable head”. 

[52]      Contractors were on site clearing up.  During this time he had looked up at the ceiling and saw material which he thought might be asbestos.  At that time the pub was really busy as it was lunch time.  He told the eleventh pursuer that the pub had to close.  Mr Nicholson was not happy about it.  Initially he had not been prepared to do so.  The pub was full and it was clear that he wanted to make money.  However he had been forceful with him and had told him that the first pursuers would close the pub if he did not do it.  He explained to the court that the first pursuers were required to take that step under their policies and procedures.  Mr Nicholson had told him that there were a number of bookings in the days ahead.  He thought that there might have been some discussion between them about trying to arrange temporary accommodation.  The affected area was cleared and customers moved into the Waterloo Street end of the pub.  He had then left and returned later.  When he did so there were still about a dozen customers sitting at four to six tables in the Waterloo Street side. 

[53]      Mr Clark had told Scottish Power that they would have to leave the premises because of the possibility of asbestos.  He told them that he should make the electrics safe and leave.  According to Mr Clark when he left the premises Mr Nicholson was still there attending to staff matters. 

[54]      Mr Clark had not been in the premises between Friday and Monday 10 October.  He told Mr Nicholson that he should not access the premises over the weekend although he had a suspicion that he might have done so.  Mr Clark returned to the premises with Mr Allan Halley, a quantity surveyor appointed by the first pursuers.  The purpose of the visit was to assess the extent of damage and the cost of refurbishment.  There was a close inspection of the premises which took one to two hours.  Mr Nicholson had been present at that time and had let them in. 

[55]      Mr Clark told the court that the state of the property was much the same as it had been on Friday.  The hole in the ceiling was still there.  Power cables were hanging down.  There was no water dripping.  The power was off.  There was some pooling of water on the floor perhaps about half an inch. 

[56]      Both Mr Clark and Mr Nicholson had gone down to the basement.  It was practically in darkness although he thought there might have been some emergency lighting.  They had checked the cable head and noticed a piece of paper attached to it with a warning sign.  He was not sure what the sign meant but he understood that there was some danger. 

[57]      Mr Clark explained the procedure of dealing with asbestos.  The area was cleared and the asbestos consultant informed.  The suspect material was tested as was the area for evidence of asbestos dust.  Mr Clark completed an action plan.  This set out the steps to be taken by various individuals and bodies to reinstate the bar.  BES Consulting was the appointed asbestos consultants.  Rhodar were the asbestos removal contractors.  They would produce a clean air certificate as evidence that it was safe to enter.  A type two asbestos survey is a general survey.  A type three survey is one specific to disruptive works.  There was a method statement produced by Tony Conway of Rhodar.  Mr Clark did not see it at the time and would not have expected to see it.  However the method statement gave a start date for work of 25 October 2005.  It was inevitable the premises would be closed for some time. 

[58]      Mr Clark told the court that he had left it to Mr Nicholson to arrange for Scottish Power to return.  He was the lessee and it was his responsibility.  In cross‑examination he accepted that Scottish Power would have to satisfy themselves as to whether it was safe to re-enter the premises.  An action plan drawn up by him said that Scottish Power were to be contacted to reconnect the cable head in the basement after Rhodar, the specialist removal contractors, had confirmed that the ceilings had been sealed off.  But it also provided that Mr Clark should provide a type two or three certificate to all those involved in site activity.  It was put to Mr Clark that this should include Scottish Power.  Mr Clark said that all type two certificates would be held on the site by the lessee Mr Nicholson.  He did not have any direct contact with anyone from Scottish Power. 

[59]      On 11 October Mr Clark emailed a number of individuals about progress ascertaining the damage and what required to be done to remove the asbestos.  He asked David Wren to arrange to get the keys to Archie’s Bar from Mr Nicholson and for Rhodar to take control of the pub until the asbestos removal had been completed and clearance tests issued by BES Consulting.  He did not know when the keys would have been handed over.  It was not necessarily envisaged that it would be that afternoon. 

[60]      An annual electrical inspection was carried out by the insurers, RSA but commissioned by the first pursuers under a national contract.  One was carried out in January 2005 which made a number of recommendations.  Number 14 related to the basement/cellar and recommended that “loose junction box and wiring above the boiler should be repositioned and secured”.  Mr Clark said that this would have been a matter for the first pursuers.  Recommendations 18 and 19 both related to securing sockets which were lying loose in the trunking adjacent to and opposite the chiller unit in the beer cellar.  Mr Clark said that both the first and eleventh pursuer might have responsibility for that depending on how the damage had been caused.  Mr Clark was unaware whether recommendations 18, 19, 20 and 21 had been acted upon.  He was asked whether he was aware of test certificates in relation to refurbished works completed in 2003 or other diagrams or documentation.  He said that these should be in Scottish & Newcastle’s archives.  He accepted that there should be test certificates issued by the electricians but he could not remember if he had seen them.  He explained that the first pursuers did not have any work carried out in the basement at the time of the refurbishment.  Accordingly the statement in the RSA report would refer to the ground floor.  There should be a project file and that should have completion certificates for electrical work in the ground floor.  He did not know who had done the electrical work.  It could have been HF Electrical who were contacted by Scottish & Newcastle. 

[61]      Mr Clark was asked what he knew about the bypassing of fuses (otherwise known as overwiring) in Archie’s Bar.  He said that he had never heard suggestions of that occurring in the pub.  He described it as a dangerous practice.  Nothing had been said to him about such a thing happening before the fire.  If he had become aware of it he would have informed the building manager and investigated the matter.  Having been shown the photograph of apparent overwiring in the customer’s main panel he said he would have regarded it as particularly serious.  He would have had the power shut down and tried to find out who had done it.  There had been nothing about this in the RSA report completed in 2005.  If there had been anything in it he would have taken immediate action and would have had someone on site within two hours. 

[62]      He was asked about overwiring in the main cable head.  He told the court that if he had been informed of that he would have been shocked and surprised.  He would assume that there should be a safe electricity supply.  It would be contrary to regulations and should not happen. 

 

Electrical evidence and Scottish Power employees
[63]      Just after 8.30am on 7 October a call was made to the defender’s call centre regarding a fault that had occurred in the electricity supply to Archie’s Bar.  The call was recorded in the “troubleCall” system with the following remarks, “water has come through yesterday from upstairs and has damaged main fuses – partial supply to business premises”.  The log shows the call as coming from WM Cumming Turner & Watt who were apparently the factors for the tenement.  However, both Mr Clark and Mr Nicholson claimed to have made a call to the defenders.  I suspect that Mr Nicholson made the call to Scottish Power but I do not think it matters for present purposes. 

[64]      The call having been logged on the system it was then observed in the power supply maintenance control (PSNC) room.  An incident was then raised by a despatcher and recorded in the troubleCall system.  The information on the system was added to as and when required and when it came to hand.  The incident that rose out of the call log just after 8.30am on 7 October is logged under “category” as “cable head change urgent”. 

[65]      Scott Melvin, an electrician employed by the defenders, was assigned to attend at the premises.  He is recorded as having arrived at 10.15am and as having left the site at 10.41am.  Mr Melvin recalled that when he arrived he met the manager who told him that there was a problem with the power supply.  The manager led him downstairs to the basement to a switch room.  He examined the cable head and found that the red fuse had blown and that there were signs of carbonisation.  He also noted that the fuse had been over wired.  It had blown releasing energy and coating the fuse and casing in a film of black carbon.  Mr Melvin told the court that this can cause problems in the form of tracking.  Electricity would travel along a path formed by the carbon deposit. 

[66]      There was evidence of moisture in the basement but he did not recall it being excessive.  He said this was not sufficient to cause him alarm.  The wood was damp and the switch gear was rusty but this was not unusual.  Usually the heat in the cable head itself helps protect it from moisture.  If moisture had been on the cable head itself he would not have touched it.  Moisture can also cause tracking.  Moisture on the outside of the cabinet would not be a problem but inside it would cause difficulties.  He explained that he did not know if the dampness that he observed was as a result of water ingress or as a result of the floor being washed. 

[67]      Mr Melvin said that he asked the manager to switch off at the mains isolator switch so that he could test the supply equipment in isolation.  He then decided to change the fuse on the red phase.  He went to his van to obtain a new approved fuse which he used to change it.  After he changed the fuse he used a Drummond Test Lamp on the red phase.  He noted that it was flickering.  A number of things could cause this.  Carbonisation might be one reason but another might be a problem with the tails or a fault in the customer’s main switch. 

[68]      Mr Melvin decided that the cable head needed to be replaced.  It was in any event damaged by the carbonisation and it may be that that was causing the problem.  He telephoned the PSNC room to arrange for a new cable head.  The incident log records the following, timed at 10.39am “3 phase m/clad c/head change req – please advise jointer NOT to put a fuse in as was tracking like mad when tested”.  Mr Melvin agreed that he had used these words but he said that the phrase “tracking like mad when tested” was not supposed to signify any particular degree of tracking. 

[69]      Before Mr Melvin left Archie’s Bar he had a conversation with Mr Nicholson and told him what was happening.  He told him that it was ok to put the power back on if he wished.  Mr Melvin’s expectation when he left was that the cable head would have been replaced in the course of that day. 

[70]      Mr McHugh is a jointer employed by the defenders.  In 2005 he was working in the faults section.  He was part of a four man team which included the jointer’s mate, Brian Stewart, and two labourers who dug the holes for getting to cables.  On Friday 7 October he received a call to go to Archie’s Bar.  The incident log records him arriving on site at 11.43am.  All that he had been told before he arrived was that the cable head needed to be changed.  He was not given the information recorded in the incident log to the effect that the jointer should not put a fuse in as it was tracking like mad.  On his arrival he met the bar owner or manager who took him down to the basement.  He described it as being like a maze.  He was disorientated by the time that he got to the electrical fittings.  He had seen a sign on the door that the meeting of Weight Watchers was cancelled due to flooding.  Other than that notice he had no prior information as to what the problem was however he suspected that flooding may have something to do with the fault. 

[71]      When he arrived at the wall where the electrical boxes etc were he noticed that there were drip marks coming down the wall from the ceiling.  That was the only evidence of flooding.  He was not sure how wet the basement was.  He described it as three or four drip marks along the wall containing the electrical equipment.  He was not able to say whether there were any drip marks near to the cable head. 

[72]      The cable head was situated close to the ceiling.  He had to stand on a pile of pallets to be able to work on it.  The metering cabinet was below and to the left.  The equipment was not fixed directly to the wall but was on wooden panels which were themselves attached to the wall.  Mr McHugh said that the condition of the metering panel was ok but when he opened the door there was evidence of moisture or condensation.  It was hard to say what the extent of the condensation was but it was sufficient for him to decide to ask for an electrician to attend and look at the metering panel.  He noticed that there was a burn or weld mark on the tail serving the red phase.  There was no deterioration on any of the other tails.  There was a bit of slack in the tail so he was able to cut the affected bit off the red tail and reconnect it.  He noted that there was a blast mark and carbon on the top at the left near side of the red phase.  He explained that this would happen when there was a short out;  a small explosion occurs resulting in the deposit of carbon on the casing and the contact.  Using PF wipes and wearing LV gloves he wiped away the carbon and cleaned it up.  He said there was no evidence of tracking at that point. 

[73]      He then inserted a new approved 200 amp fuse.  It immediately operated blowing the yellow fuse as well as the red one.  There was a small flash.  He said that there must have been a fault somewhere else in the system.  He thought it might have been that there was a short somewhere between the red and yellow phases.  But he was not able to say where this would be. 

[74]      He explained that the owner had asked him to wait until he finished serving lunch before changing the fuse.  The electrical equipment appeared to be running off the blue and yellow phases and the owner was able to continue serving on those two phases.  They had spent time looking for the entry point for the cable.  When the two fuses blew he removed them and the fuse barrier.  He saw carbon on the terminal of the red phase and on the fuse barrier.  He did not see carbon on the yellow phase. 

[75]      Mr McHugh then contacted PSNC and asked for an electrician to attend and look at the meter panel because of the evidence of moisture.  He described it as getting a second opinion.  Mr McLaughlin, another Scottish Power electrician, attended.  According to Mr McHugh when Mr McLaughlin arrived they had a conversation about the meter panel but before Mr McLaughlin could investigate they were ordered out of the building because of the finding of asbestos.  He said that they were told to do this rather sharpish.  He could not recall who had told him this but he had called control and told them that he could not finish the job because asbestos had been found and they were told to leave.  The call log records an entry at 15.41 “made safe for tonight as per C MacKay – Scottish & Newcastle will phone in when we can carry out further work”.  Mr McHugh was asked whether this rang any bells and he said that he remembered speaking to a chap from the brewery who had told him that once testing was done on the suspected asbestos he was to phone back and take it from there.  He accepted that he had told the control room that he had made it safe for tonight. 

[76]      Before he left Mr McHugh left a hand written notice attached to the cable head with yellow warning tape.  The warning tape contained the words “DANGER – LIVE MAINS”.  The notice read “7/10/05 DON’T ENERGISE – C/HEAD PROBLEM – WATER INGRESS – HAD TO CLEAR THE BUILDING DUE TO ASBESTOS – NEW C/HEAD REQ – TO BE CUT OUTSIDE”. 

[77]      He explained that he assumed that the problem was water ingress.  It was a warning to another jointer who might come after and would not have the knowledge that he had obtained in the course of his work on site. 

[78]      Mr McHugh accepted that at the point when he left the building he did not know whether the electrical equipment was safe or not.  He knew that the incoming terminus was still live and he said that he was happy with that.  He had not cut the cable outside.  At the time he left the premises the cable had not been located.  The labourers in his team under his direction had been digging immediately outside the front door in Waterloo Street.  In fact the cable entered the building close to the cable head in Wellington Street.  Mr McHugh explained that he had been following the plan of cables in the area on his laptop.  It was put to him in cross‑examination that he should have appreciated that the cable entered the building at a point next to the cable head.  In reply he said that it was a maze in the basement and he had become disorientated.  It was very hard to get his bearings. 

[79]      When Mr McHugh left the blue fuse had been left in.  He had visually checked it and noted that there was no carbon around it.  He had been in the process of taking it out.  However there was a woman from what he thought was the local council environmental health department (she was in fact from Rhodar) who required power for her testing equipment.  He had accordingly made a split second decision to leave the fuse in so that she could operate the equipment.  He had felt sorry for her;  Mr Clark had been barking orders at her.  Had she not been there he would have removed the blue fuse to be extra safe.  However he was happy to leave the fuse in as there was no sign of distress.  There was no water sitting on the bottom of the cable head.  He accepted that there was a possibility that leaving the blue fuse in meant that there was a risk of fire in the cable head.  However he had expected to come back and finish the job once the testing had been done probably over the weekend. 

[80]      So far as cutting the cable is concerned Mr McHugh said that if the digging team had told him that they had found the cable he would have cut it.  There would be difficulty in identifying the cable that served Archie’s Bar.  On the plan on his laptop he said that he could identify four possible cables serving the building.  In cross‑examination he was asked how he would have known which cable to cut given that some might serve other properties.  He replied that one would try to cut the service cable to Archie’s Bar alone.  In fact the plan displayed on the laptop did have the cable entering the building but it appeared that they were looking at the wrong part of the plan. 

[81]      Mr McLaughlin is an electrician with the defenders.  He said that he had been called to Archie’s Bar on 7 October.  He was told that it was to check for safety.  He met Mr McHugh when he arrived and was asked by him to check the meter panel to see if there was any water damage.  He was not sure if he did check the panel but thought he probably did.  Had he been told of possible water ingress into a meter panel his usual course of action would be to open it up, look for any water and any smells, bad connections or carbon.  He said that he would not just have left it in that condition and so he was reasonably sure that he would have looked at it.  He accepted that he probably had not carried out an insulation test as they had been told to leave the premises because of the asbestos.  He also accepted that the meter had appeared dry and in good condition. 

[82]      John Ferguson is a director of HF Electrical.  At the time they were electrical contractors for Scottish & Newcastle.  He recalled that his company had received a telephone call advising of flood damage at Archie’s Bar.  He arranged for one of his employees, Douglas Morrison, an electrician to attend and isolate the electrical fittings.  He went to the bar himself and met either Kenny Clark or Keith Whitson.  He arrived at some time between 9.00am and 10.00am.  His purpose in attending was to assess how much work was required to have the bar up and running as soon as possible.  He spent an hour or two going round the premises looking at the damage.  He had gone down into the basement.  His recollection was that there were no lights on in the basement and he had used a torch.  He found that the cable head was “arcing”.  It was situated on a wall about 1.2 metres from the ground.  He could hear a noise which he described as a buzzing sound and could see it crackling.  He could see water coming down the back wall.  It was getting into the cable head and causing it to short circuit. 

[83]      Mr Ferguson’s position in evidence in chief was that water was definitely coming in and running down the wall.  However in cross‑examination he said that he could not be certain that that was indeed the case.  He also accepted that he was wrong to use the word “arcing” it was clear that he meant tracking. 

[84]      In re-examination he said that he could not say exactly where the water was but he had a recollection of it coming down the back wall.  It was not cascading.  He was asked if it was in a position that was relevant to tracking.  He replied that he thought there was water and that was causing the tracking.  He was asked what made him think that it was the cable head.  He said that it was quite distinctive.  He knew about it from working in the industry.  It was green in colour. 

[85]      Mr Ferguson believed that he himself had called Scottish Power.  They had arrived shortly after but he had no dealings with Scottish Power personnel on site.  He recalled that he had been informed that there may be asbestos in the ceiling of the ground floor.  Douglas Morrison had already left.  He did not know what action Mr Morrison had taken but he would have expected him to have isolated all the affected areas.  It may not have been necessary for Mr Morrison to go into the isolator switch or isolate the whole pub.  He said that he remembered Scottish Power were digging up the street when he left.  Mr Ferguson was shown the RSA report of February 2005.  He said that he had no personal knowledge of the report.  However, HF Electrical had priced work and received an order for work at Archie’s Bar.  An invoice had been raised in April 2005 for the sum of £1,789.53 inclusive of vat for work done in Archie’s Bar.  That was paid in May 2005.  He said that the process was that Scottish & Newcastle would have received the RSA report and would have identified the items that were their responsibility.  Having done so they would then ask HF Electrical to price the work and would have placed an order.  It was not however possible to tell from the invoice which items in the RSA report had been identified as a responsibility of Scottish & Newcastle and carried out by HF Electrical.  They did not carry out work on behalf of the lessee.  Mr Ferguson said he did not recollect having a conversation with Mr Clark in which he used the term “cracked cable head”.  He said that was not a phrase he would have used. 

[86]      Mr Ferguson was shown a photograph of the fuses in the main consumer switch box taken after the fire.  He was asked about their condition and he said that it showed that someone had installed a mess.  Two of the fuses, the blue and the yellow, had been bypassed.  He said that no electrician would have done that.  It was important to ensure that the correct fuse was used.  He thought that it was probable that the fuse had blown and that was why someone had attached a wire over the fuse.  It was impossible to know what load the fuse would take after it had been interfered with in this way.  He had no knowledge of this happening in Archie’s Bar.  The fuses appeared to be in the operative position and the power switch was on.  He was not able to say whether the fuses were motor fuses or ordinary fuses.  He was unable to say what equipment would be served by any one phase.  It was not possible to do so.  He confirmed that if the electrical work had been done as part of the refurbishment there should have been certificates. 

[87]      Douglas Morrison gave evidence that he had attended at Archie’s Bar on 7 October to look at the damage to the electrical equipment as a result of flood or water damage.  When he arrived he saw that the ceiling in the Wellington Street area was falling down.  Light fittings were hanging from the ceiling on their transformers.  Water was coming in through the ceiling.  He located the main distribution board which was in the bar area on the ground floor and disconnected the circuit serving the affected lights.  He was there for less than an hour.  He did not inspect the cable head or meter panel.  Although he could not recall doing this he told the court that he would have checked the other fittings.  He said that there was no water on the distribution board which he described as being a fairly new installation, less than two years old.  He had disconnected only one circuit breaker. 

 

Firefighter’s evidence
[88]      John Gough is a consultant with International Fire Investigators, having joined the company in 2010.  He was previously a fire officer with Strathclyde Fire and Rescue Service.  In 2005 he was a watch manager with the Fire Investigations Unit.  He had 28 years’ service in the fire and rescue service and had been with the Fire Investigations Unit since it was formed in 1998.  He had completed a number of fire investigation courses.  Since he left the fire service he has continued with his training and professional development.  He is the Scottish coordinator of the UK association of fire investigators. 

[89]      Mr Gough was the designated fire investigation officer on behalf of Strathclyde Fire and Rescue.  He gave evidence about his attendance at the scene of the fire.  He spoke to a statement which had been lodged in process and supplemented it as appropriate. 

[90]      The first call to attend the fire was a 999 call from a security guard in a building at the opposite corner of Wellington Street and Waterloo Street.  It was logged at 06:00 hours on 12 October 2005.  The first firefighting appliance arrived at 06:06 hours.  Mr Gough together with watch manager Douglas Naismith also from the Fire Investigations Unit arrived at 07:17 hours on the same day.  They spoke to firefighters in order to gain an understanding of what had occurred. 

[91]      When the crews turned up they found that the premises were lockfast and there were no signs of any forced entry.  At that point only smoke was evident.  It appeared to be coming from the basement.  The crew could see through the ground floor windows that there was no sign of fire at ground floor level.  They gained access to the basement through the hatch in the lane at the back of the building.  They then saw that the fire was well alight in the area of the basement at a high level.  They got a main jet in through the hatch.  The crews also forced open the door next to the hatch.  From this they went down the stairs to basement level.  When they got to the bottom they could not get any further.  They saw the fire through holes above them.  The fire was burning in the floor void of the ground floor.  The crews then went round to the front of the building and forced entry through the door there.  They entered through the front door and made their way down to the basement.  They had to force open the door at the top of the stairs.  The firefighters that entered the basement fought some fire in that area.  The fire continued to develop and spread and there were concerns of hidden fire spread.  The firefighters were withdrawn from the building and thereafter fought the fire in the basement through the hatch.  He understood that they had had difficulty in finding a route through the basement and did not get into the beer cellar.  Shortly after the crews withdrew from the building part of the ground floor at Wellington Street collapsed.  The firefighters then also fought the fire through the windows at ground floor level on Wellington Street.  The crews forced open the door at the Wellington Street side when the fire started to break through the ground floor.  They also put in two windows in the ground floor. 

[92]      When they arrived they saw the crews were taking access to the ground floor through the doors at the front.  The building was heavily smoke logged including the upper floors.  They could see the fire in the basement through the hatch.  They used a thermal imaging camera and it was obvious that the heat was travelling up the building.  Sometime later, probably within an hour of their arrival, the fire broke through to the ground floor.  By that time the crews had withdrawn from the building.  According to Mr Gough there was an alarm ringing when they attended although they could not identify which building it was coming from.  There had been some question as to whether there was any power to the intruder alarm to Archie’s Bar. 

[93]      They then spoke to Allan Nicholson the tenant of Archie’s Bar.  He told them that only one phase of the three phase electrical supply was working.  He said that water had entered the pub after a sink upstairs was removed and that he had called out Scottish Power.  Mr Nicholson told Mr Gough that the premises were last open on the preceding Friday.  Scottish Power were out that day working on the three phase supply and Scottish & Newcastle had been assessing the damage.  He said that he and his partner, Amanda Meldrum, had locked the premises at 19:00 hours on that Friday.  There was no suggestion that they had been in the pub after Friday.  This was confirmed by Amanda Meldrum.  Mr Nicholson told them that there were two fridges in the basement and two chillers and a till on the ground floor which still had power.  The lighting circuits were partially powered. 

[94]      Mr Gough and Mr Naismith left the premises at about 11:00 hours on 12 October 2005.  When he left the fire had spread to the ground and first floor.  The crews were fighting the fire from the exterior at that time. 

[95]      He understood that the stop message was issued at 12:44 hours on 12 October 2005.  The firefighters were then dampening down for a couple of days.  They attended until 10:47 hours on 14 October 2005. 

[96]      The Fire Investigations Unit did not get any access to the building during the firefighting activities.  After the fire was extinguished the spectre was raised of asbestos in the building and accordingly they did not seek access.  He had attended the premises on occasions during the demolition.  He had done a summary report of the fire which indicated that the fire originated within the basement and that a detailed fire scene examination could not be undertaken.  In relation to the cause he noted that there was nothing to suggest that it was deliberate and electrical fire was a possibility.  However, he also indicated that in the absence of incontrovertible evidence the cause of the fire remained undetermined. 

[97]      Mr Gough said that the investigation had not continued as they were unable to enter the building due to the presence of asbestos.  He had examined a piece of electrical equipment that had been recovered and that showed evidence of arcing however he could not recall what the equipment was.  He said that it had indicated to him that this equipment was energised.  He could not say whether that was caused by the fire or was the cause of the fire. 

[98]      Mr Gough was referred to a photograph taken from outside the building looking towards it during the fire.  He was asked about different colours of smoke that could be observed in the photograph.  He said that that could be due to two different types of fuel or it may be that there was poor ventilation at one point in the fire.  Another reason might be that it was as a result of water turning to steam.  He agreed that burning bitumen can produce black smoke but he was unable to say whether that was the cause of the black smoke in the photograph. 

[99]      Steven Cairns is a retired fire officer and is now employed as a civil contingencies officer with Scottish Fire and Rescue Services.  In October 2005 he was a watch manager based at Cowcaddens Fire Station.  He had over 26 years’ service with Strathclyde Fire and Rescue Service. 

[100]    On 12 October 2005 his watch responded to an emergency call to a fire in Wellington Street, Glasgow.  Their arrival was timed at 6.06am.  The initial turnout was three pumps and an Aerial Ladder Platform (“ALP”).  Two pumps and an ALP attended from Cowcaddens Fire Station.  The third pump was from Yorkhill Fire Station.  Mr Cairns was the officer in charge of the first pump in attendance.  As they approached the premises the officers could see smoke emanating from the Wellington Street side of the building.  The smoke was coming out at ground floor level.  Mr Cairns went round to the back of the building in Wellington Street Lane.  He observed smoke coming out of the back fire exit door.  He requested a line of hose to be run out and made ready for deployment at the rear.  He also requested a line of hose to be deployed at the Waterloo Street entrance to Archie’s Bar.  He committed two firefighters with Breathing Apparatus (“BAs”) and a jet into the ground floor.  They forced entry through the doors at Wellington Street.  Smoke roared out under pressure.  During this time he was trying to ascertain and act on information as it was coming to him to allow him to make decisions on how to tackle and deploy resources to fight the fire.  The ground floor was heavily smoke logged and the BA team could not see any fire.  Mr Cairns had been in the pub before and knew the layout.  He was aware that there was a basement and access to it.  He began to suspect that the fire was in the basement.  They could not find any door or hatch to the basement.  He withdrew the team as he was concerned that the floor may be becoming unstable and conditions were rapidly deteriorating.  He conducted a debriefing to ascertain the next plan of action.  He was particularly concerned of a possible ceiling collapse.  A light was seen in the premises above Archie’s Bar and he sent a BA team upstairs to investigate.  Nobody was found. 

[101]    On further investigation he noticed two small service hatch doors at ground level in Wellington Street Lane.  These were forced open.  When the hatch doors were opened he observed that part of the basement at the doors was well alight.  The fire was travelling at great speed through the basement in a northerly direction towards the front of the building.  He explained that they had lain on their stomachs at the beer trap and looked through into the basement and that was when they observed the fire at ceiling level travelling away from them towards Waterloo Street.  It was burning fiercely.  In cross‑examination he said that he was satisfied that the fire was travelling away from them. 

[102]    A jet was deployed to work through the hatch to offensively fight the fire at basement level on the left hand side of the building.  Mr Cairns then committed a two man BA team to enter the premises through the adjacent fire exit doors to identify whether there was any access to fight the fire in the basement.  The BA team said that they could not get access because the area was full of tables and furniture.  They could not make any progress through the building.  Items were stacked in a corridor at the bottom of the stairs.  They could not see any flames within the building.  The only flames that they could observe were at the top of the wall at the fire exit on the left hand side ie adjacent to the beer hatch.  The fire had breached the wall.  The firefighters attempted to extinguish the flames with a jet. 

[103]    As the smoke was becoming very thick Mr Cairns pulled the BA team out of the building.  He sent for a thermal imaging camera and the Damage Control Unit from Bellshill attended.  He thought that if he used the thermal imaging camera they might be able to find another way in to the fire.  The BA team went back in with the thermal image camera but could still find no way through.  Senior officers were arriving and one of them took command of the incident.  They noticed that the fire was beginning to break through at the ground floor level at the corner of Wellington Street and the lane.  It appeared to be in the voids between the floors.  They broke the windows at ground floor level at Wellington Street and tried to get water on the fire.  He did not like the look of the way in which the smoke was pulsing indicating a lot of heat below and the crews were withdrawn.  As part of the ground floor collapsed shortly afterwards, he was right to do so.  An area in front of the bar at the Wellington Street side of the lane collapsed. 

[104]    He had spoken to the security guard who discovered the fire who told them that he thought he had heard an alarm at 05:00 hours and then it had stopped.  He said that he thought he could smell burning just before he had called the fire brigade.  That is when he saw smoke coming out of the building.  Mr Cairns also spoke to the caretaker of the adjoining building.  He told them that he had looked up the lane at 05:30 hours when he had taken his dog for a walk and that he did not smell burning or hear any alarms.  No alarms were ringing from the building when they attended.  The only alarm was from an adjoining building.  No alarm rang when entry was forced. 

[105]    He was aware that after he left firefighters had gone into an adjoining building and been able to direct a jet down on to an area of flat roof.  He and his crew were relieved and returned to the station at about 10:00 hours.  He returned to the incident again that night at about 18:30 hours.  At that stage the fire was smouldering and the building was under demolition by Reigart.  He did not see anyone enter the premises other than Reigart crew. 

[106]    He told the court that there were no flames coming out of the vents at basement level when they first went round to the rear of the building.  Flames came out of these vents just before they forced entry through the hatch.  They were coming out of the first and second vents in the lane from Waterloo Street.  The first was a bright orange flame and the second was a bright blue flame.  The blue flame looked like gas burning and he thought the gas supply was in that area.  The orange flame denoted significant oxygen supply. 

[107]    He thought from his experience that the fire had probably been going for about an hour, possibly an hour and a half before they arrived.  The fire was well developed and spreading when they arrived.  He said there was a charring rate of 0.5 millimetres per minute. 

 

Security at Archies Bar
[108]    Brian Sinfield is the operational manager for ADT who were responsible for the alarm system in Archie’s Bar.  There was only one listed key holder, Allan Nicholson.  The log showed that on Saturday 8 October the door to the premises had been opened just after 9am.  It appeared someone had left at about 10.34.  It had been opened again at 15.16.  There was then a line fault at 15.30 and attempts had been made to get hold of the key holder without success.  A message had been left with someone for Mr Nicholson to phone back but there is no record of him having done so.  At 19.53 it is recorded as being out of service.  At 18.09 on 9 October the line was briefly restored for about 40 seconds but failed again.  After that the entries related to attempts to get hold of the key holder.  Mr Sinfield explained that there was a procedure which they went through to contact the key holder culminating in the sending of a recorded delivery letter.  Mr Nicholson said he never received such a letter.  In cross examination Mr Sinfield said that it was possible that water ingress could cause the fault.  It might lead to a short circuit. 

[109]    The parties agreed by joint minute that no contractors entered the premises on either 10 or 11 October. 

 

Expert evidence
Objection to evidence from the pursuer’s expert, Stephen Braund
[110]    On day 10 of the proof Mr Moynihan called Stephen Braund, a forensic investigator with Hawkins Associates.  Before any substantial evidence was led from the witness Mr Hanratty raised an objection to what he said he said he understood to be Mr Braund’s evidence.  While I repelled the objection at the time Mr Hanretty renewed it in his closing submissions.  His short point was that the pursuers had failed to establish the factual case on record prior to seeking to lead their expert.  In support of his objection Mr Hanratty cited Davidson on Evidence at paragraph 11.23 and the cases referred to in that passage.  Although he said that this was not a no case to answer submission he conceded that could be the import of the objection.  I assumed that if I upheld the objection I would in effect be determining the outcome of this case in the defenders’ favour without having heard all the evidence.  It seems to me that I could only sustain such an objection at that stage if it was clear and obvious that the pursuers had failed to lead any evidence from which the facts upon which the opinion was founded, could be established. 

[111]    Mr Hanratty submitted that the case for the pursuers was that the defenders electrical supply equipment was contaminated by the presence of water.  He submitted that the evidence led up to that point did not establish that fact. 

[112]    Mr Moynihan disagreed and pointed to evidence which he said supported the inference that water had contaminated the cable head.  In any event the pursuers’ case was not predicated solely on water ingress.  He directed my attention to the pursuers’ averments at page 34 of the closed record at C-D where, having dealt with water ingress, the pursuers sought to establish a more general case about the existence of some kind of fault which had been noted by Scottish Power employees. 

 

Decision on objection
[113]    I was satisfied at the time that the pursuers had laid an evidential base for Mr Braund’s opinion evidence.  I noted Mr Ferguson as having said that when he went down to the basement he could see that the cable head was arcing.  He said that water was coming down the back wall, getting in there, causing a short circuit and arcing.  Mr McHugh spoke to seeing moisture or condensation in the metering panel.  It was significant enough for him to call for the services of an electrician, Mr McLaughlin.  There was other general evidence about water and dampness in the basement.  I considered that whether the evidence supports the contention that there was in fact water in either the cable head or metering panel could not be established until I had heard all the evidence and submissions.  At the stage at which the objection was taken all that mattered was that there was evidence from which these facts might be established. 

[114]    In any event the pursuers’ case does not rest solely on the presence of water in the cable head.  I repelled the objection to Mr Braund’s evidence when it was made in the course of the proof and I repel it after hearing evidence and submissions. 

 

The experts
[115]    I heard expert evidence from Stephen Braund and Graeme Campbell for the pursuers and Michael Jones for the defenders.  All are forensic fire investigators.

[116]    Stephen Braund is an associate with Hawkins & Associates Ltd, forensic investigators.  A brief summary of his qualifications and experience is set out at appendix A to his report dated 2 February 2010.  He has a degree in electrical and electronic engineering from the University of Manchester Institute of Science and Technology (“UMIST”), is a member of the Institution of Electrical Technology and has been registered with the Engineering Council as a chartered engineer since 1993.  He has worked as a design and development engineer in the electronics industry, a broadcast engineer, a principal systems engineer and project technical engineer and project manager in the defence industry as well as a product marketing manager. 

[117]    Since 2003 he has been engaged in fire and explosion investigation in both domestic and commercial premises, as well as vehicles.  The summary also says that he investigates “technical problems, personal injury, leaks and spillages”.  There was no elaboration of that description.  Mr Braund told the court that he had been involved in the investigation of over 800 fires. 

[118]    Mr Braund gave his evidence in an understated manner but demonstrated a clear understanding of electricity and electrical equipment and fires developing from electrical faults.  I was less sure of his experience on non-electrical fires and that might have been a problem had I considered that human agency was a serious issue in this case.  For reasons outlined below I do not consider it is an issue. 

[119]    It was put to Mr Braund in cross examination that he had not requested wiring diagrams for the premises.  He accepted that he had not done so and that he was at fault in not requesting them.  He had no explanation as to why he had not done so.  Whether these would have been helpful or not is unclear but Mr Braund’s acceptance that he did not investigate the wiring layout before the fire is a matter I need to take into consideration.  I was however impressed that Mr Braund did not try and duck the issue.  That contrasted favourably with Mr Jones’s approach. 

[120]    Mr Graeme Campbell is a forensic investigator and chartered electrical engineer.  He has been a partner in Burgoynes since 2013.  Before that he was an associate having joined the firm in 2002.  He is a chartered electrical engineer with degrees in electrical, electronic and building engineering.  He is a member of the Institute of Electrical Engineers.  Before he moved to Burgoynes he was involved in electrical design and site installation.  Since moving to Burgoynes he has investigated 870 incidents, 90% or more have been fires.  He investigates all types of fires – not just electrical ones. 

[121]    I thought Mr Campbell was an impressive witness who gave his evidence is a straight forward manner. It is true that he does not have the same experience as Mr Jones.  It is also true that when he originally investigated this matter in 2005 he was a lot less experienced than he is now.  Nevertheless I had no difficulty in accepting his evidence as well reasoned, moderate in tone and straight forward in effect.  Much was made of the fact that he had not considered the possibility of an intruder.  The elements which Mr Hanretty said supported the proposition that there was an intruder were described as “new evidence” by Mr Campbell.  Having considered them he adhered to his original opinion.  Mr Hanretty criticised him for not having considered these matters before.  However, for reasons I set out below, I do not consider that there is any evidence that there was an intruder.  Accordingly I do not think that the criticism has a plausible foundation.  

[122]    Michael Jones is a partner in Geoffrey Hunt and Partners.  He has an impressive CV set out at length in appendix A to his report of 23 February 2015.  He describes himself as a forensic electrical engineer, forensic fire investigator and expert witness.  He is registered with the Fédération European d’Associations Nationales d’Ingénieur as a practising professional engineer in Europe.  This entitles him to use the title and style himself Eur Ing Jones.  Amongst other qualifications he is a Chartered Engineer and corporate member of the Institution of Electrical Engineers.  He holds a diploma in fire investigation from the Forensic Science Society and is a member of the Institution of Fire Engineers.  He has given evidence on numerous occasions in courts in England and Wales and Norway.  He was instructed once before as an expert in a case in Scotland but that settled during the proof but before he gave evidence. 

[123]    Mr Hanretty pointed to the fact that, having investigated over 2,000 cases, Mr Jones had investigated more cases than both of the pursuers’ experts put together.  I pause to observe that mere quantity does not guarantee acceptance of his evidence.  Mr Braund has investigated some 800 fires but also has a substantial background in other areas.  At one point Mr Jones, rather disparagingly I thought, referred to Mr Braund’s background as a television engineer.  In fact Mr Braund’s background is rather broader as an electrical engineer working in broadcasting and the defence industries.  With 800 investigations Mr Braund is no neophyte but perhaps brings a wider perspective which can enhance a narrower area of expertise.  Nevertheless I acknowledge Mr Jones’ vast experience in the investigation of fires. 

[124]    Mr Jones gave evidence with confidence and plausibility.  He demonstrated an in depth knowledge and enthusiasm for his subject.  He took care to explain technical matters to the court.  He had prepared numerous drawings to demonstrate the layout of Archie’s Bar and the spread of the fire.  These were of assistance not only to the court but to other witnesses.  I felt that he would make an excellent teacher or lecturer. 

[125]    Against that background it may seem surprising that Mr Moynihan mounted a substantial attack on his credibility as an expert witness.  I regret to say that I consider that the criticism is well founded. 

[126]    To understand the nature of the criticism it is necessary at this stage to examine in some detail one particular aspect of Mr Jones’s evidence;  his theory that the fire may have been caused by an intruder.  This is set out in his report.  At paragraph 10.5 Mr Jones concludes that the likely causes of the fire are either a deliberate act by a person or persons unknown or the failure of the consumer’s electrical apparatus in or within close proximity to the beer cellar.  Mr Hanretty spent a considerable amount of time exploring the possibility of there having been an intruder with a number of witnesses.  Accordingly a substantial part of the proof was spent chasing this theory.

[127]    There is no evidence that there was an intruder in the premises in the hours before the discovery of the fire.  As I will come on to explain what evidence there is does not support an inference that there may have been an intruder.  Mr Jones’s conjecture is based on the proposition that an intruder cannot be excluded. That is true but in my view Mr Jones’s failure as an expert witness was to take a theory for which there was no evidence, but could not be excluded, and to give it equal plausibility and weight to other theories for which there was supporting evidence.  He claimed that this approach was based on scientific logic for which he cited Francis Bacon. 

[128]    The fire service arrived on the scene shortly after 6am on 12 October. They found the premises to be secure with no sign of a break in. That evidence was not challenged. Mr Nicholson gave evidence, which I accept, that he was in the premises on the Tuesday and he left the premises secure.  There was no evidence of any other person taking access to the premises between Mr Nicholson leaving and the outbreak of the fire. 

[129]    There are a number of features in the premises which are unexplained.  A petrol can was found floating in the water.  It was empty but the cap was secure.  It had been brought to the premises by Mr Nicholson with the pump.  Mr Nicholson was unable to say whether there had been any petrol left in the can.  In his report Mr Jones suggested that if there had been an intruder it would have provided fortuitous material with which to accelerate the development of a deliberately set fire.  Mr Braund was aware of the petrol can but he noted the fact that the cap was on.  He commented that it was very rare for someone who was using petrol to set a fire to put the cap back on the petrol can.  

[130]    It is no doubt true that had there been an intruder and had the intruder wished to set a fire in the premises and had there been petrol in the can then the fortuitous find of petrol would have assisted.  But this is all conjecture for which there is no evidence. 

[131]    There was also evidence that a gambling machine had been broken into.  Mr Nicholson said that it had not been in that state when he left the premises on the Tuesday evening.  The photographs also showed a cash box sitting on a table which had apparently not been there on Tuesday evening.  Immediately after the fire the premises were secured by the fire service before being handed over to the demolition contractors who in turn secured the premises.   

[132]    The issue which Mr Jones alighted on was at what time was the gambling machine broken into? If the premises were secured, and the gambling machine intact, on Tuesday night and the premises secured immediately after the fire it might suggest that there had indeed been an intruder who had broken into the gambling machine in order to steal its contents.  The argument was that this must have happened after the premises were secured on Tuesday night but before the fire started on Wednesday morning.  The problem with this theory is that a closer examination of the photographs clearly shows the door or cover of the gambling machine, which would have had to have been removed in order to get the contents, lying over a fire hose.  On the face of it that suggests that the gambling machine had been broken into after the fire service had been there.  

[133]    Mr Graeme Campbell told the court that he had attended many fires where either demolition contractors or the fire brigade had assisted owners by forcing open tills etc to remove cash from the premises.  Mr Nicholson denied any involvement in this.  However in the absence of any other evidence of a break in to the premises I consider that the gambling machine was broken into after the fire. 

[134]    The photographs also showed tea lights having been placed in a number of locations in the basement.  There appeared to be a plastic bag containing tea lights in the kitchen.  None of the experts had noted these;  they were apparently spotted by the eagle eyed junior counsel for the defenders.  Accordingly some time was spent examining their number, locations and where they might have come from.  Mr Braund said that tea lights, which are small candles often used on tables in restaurants or where there is no electric light, have been known to cause fires especially when placed on plastic or things such as televisions.  He did not think that there was anything untoward about them being found on the premises.  There was emergency lighting in the basement but it would only have lasted a few hours so there was a reason for them to be there.  Mr Nicholson on the other hand could not explain their presence and said that he did not have tea lights in the premises.  I think it is more likely that he is mistaken and they were used to light the basement.  In any event there was nothing from their presence that might suggest that a carelessly placed tea light had caused the fire. 

[135]    A difficulty for Mr Jones’s theory that there was or might have been an intruder is the complete absence of any evidence of a break in to the premises.  That however did not deter Mr Jones in giving detailed speculation on the means of access.  There were two.  The first was through the roof of the single storey extension at the rear of the premises.  It should be noted that the roof was destroyed in the fire and had there been any break in there any evidence of it would have been destroyed.  In his cross examination Mr Jones was asked how high the single storey was.  His answer was eight feet.  He was then reminded of the height by being shown photographs of the exterior wall and conceded that it may be some 15 feet.  He explained his previous answer by telling the court that he thought that Mr Moynihan’s question related to the general height of a room.  I was not satisfied that he had misunderstood Mr Moynihan’s question.  

[136]    Again undeterred Mr Jones pointed to the drain pipe near to the wall and suggested that it would be easy to get up the drainpipe and through the barbed wire which topped the wall.  (I could see no evidence of damage to the barbed wire but that was not explored in evidence.)  Mr Nicholson said that so far as he was aware it was a sealed roof.  Unless there was, fortuitously, some tool with which to break through, lying on the roof the intruder would have had to take it up with him when he climbed the drain pipe.  Mr Moynihan asked Mr Jones how his intruder got out, given that the doors were found to be locked when the fire service arrived.  He replied that he could have stacked material up and climbed out the way he came.  As Mr Moynihan noted in his submissions this would have entailed the assembly and stacking of unspecified items in the dark so that he could climb up a considerable distance while a fire that he had set burned in the basement below.  

The other route speculated upon was a route through from Rabbie’s Burns Tavern.  There was no access between the two public houses.  Mr Jones thought that someone could hammer their way through the wall.  I got the impression that this piece of “evidence” was being put together in Mr Jones’s mind as it was being spoken.  There is of course nothing to stop a determined person breaking into premises.  But this was an old building with one imagines substantial walls.  There was no evidence as to what tools might be necessary to break through even dividing walls, how long it might take and whether the noise might alert those in the vicinity.  There was a night watchman in a neighbouring building. 

It would be polite to describe these scenarios as implausible.  There is not a shred of evidence to support either of them.  It is disappointing to see an expert indulging in such speculation in the absence of evidence.  However my concerns with Mr Jones’s evidence do not rest there.  

[137]    In Mr Jones’s report he misquoted the evidence of Mr Cairns, the fire officer when he said that when he opened the beer hatch the direction of fire was towards the electricity supply apparatus.  In fact the cable head was situated on the same wall as the beer hatch and the fire was travelling towards the front of the building away from the apparatus.  When his mistake was pointed out to him he replied that of course the flames would go in that direction because when the trap door was opened it would suck air in and blow the flames away from the door, and hence the apparatus.  

[138]    There I think two comments to be made in relation to that.  If Mr Jones thought that the reason for the flames going in that direction was because of the air being sucked into the building it should not have been a factor that he took into account when he wrote his report.  Secondly Mr Cairns was challenged on his observation of direction of travel of the fire away from the south west corner.  He was clear in his observation.  He was an experienced fire officer and I would have thought would be alive to the possibility that the appearance of travel of the fire might be affected by air being sucked in by the fire. 

[139]    Mr Jones conceded that he should not have placed reliance upon it but then dismissed the point as irrelevant.  It is clear that he did place some reliance upon the observation at least when dealing with the possibility that the fire in the cable head was caused by the water from the fire hose being played onto that section of the building (see paragraph 8.13 of his report). 

[140]    I was also concerned at Mr Jones’s use of photographs that had been taken by the fire service while the fire was in progress.  A number of photographs appeared to show denser black smoke.  The fire service witnesses were unwilling to speculate as to what might have given rise to this but said that such black smoke usually indicated that there was insufficient oxygen at the point of the fire.  They accepted that it could come from bitumen though as I understood it there are a number of other materials and circumstances that could give rise to such dense dark smoke. 

[141]    The cable head has a bitumen base.  Mr Jones suggested that the appearance of the smoke was indicative of the cable head becoming involved.  This of course would be at a later stage after the fire had started and would suggest that the fire started elsewhere and spread to the electricity supply apparatus.  

[142]    If it was possible to link the smoke to the bitumen, or at the very least suggest a reasonable possibility that this was the case then something might be made of this point.  However, at least some of the smoke appeared to be coming from a window in the first floor occupied by Rabbie Burns Tavern.  As I understood Mr Jones’s final position it was that the smoke may or may not be related to the cable head becoming involved in the fire.  I concluded that I could draw no inference from this evidence. 

[143]    Mr Jones did however raise another possible cause of fire; that rats or mice might have attacked the wiring causing it to fail.  Mr Braund conceded that it was a possibility.  He had seen fires which had been caused by rodent activity.  However these were more common in the countryside than in urban areas. 

[144]    There was no evidence of rats or mice posing a problem in Archie’s Bar.  Indeed I do not recall Mr Nicolson being asked about rats or mice infestation.  Accordingly it seems to me highly improbable that the fire was caused by mice or rats.  

[145]    The defenders produced one report from Mr Jones dated 23 February 2015.  Mr Jones explained that there had been other interim reports to the defenders and their agents.  This report represented the culmination of an iterative approach with them as his thinking developed.  I do not for one moment suggest that there has been improper influence on Mr Jones or that he has consciously gone out of his way to tailor his conclusions to suit his clients’ case.  Nevertheless I was concerned that at times when confronted with difficulties in his evidence instead of facing up to these difficulties his position shifted further away from evidence into yet more speculation that might shore up the defence.  In his report he said that if human agency can be discounted as a cause of the fire then it would seem that an electrical fault was the only available option (paragraph 9.2.3).  Mr Jones appeared to be going to some lengths to demonstrate that human agency could not be discounted.  At one point in cross examination it was put to him that if the petrol can was empty then there would be no accelerant available to his intruder.  He then said that of course this was a bar and there would have been spirits which could have been used instead.  There is no evidence to support the claim that spirits could have been used as an accelerant. 

[146]    On the whole I did not find Mr Jones’s evidence to be acceptable.  I would have been inclined to disregard it entirely were it not for the fact that it was rescued to some extent by Mr Braund.  Mr Braund’s original position was that the fire started in the electrical supply equipment.  However, having had the opportunity of reading Mr Jones report he considered that it was equally possible that it had started in the beer cellar.  That position was not shared by Graeme Campbell who continued in his opinion that the fire started in the cable head.  Nevertheless given Mr Braund’s approach Mr Jones’s opinion that the fire started in the beer cellar is worthy of consideration.  That is a matter to which I will return. 

 

Mr Stephen Braund’s evidence

[147]    Photograph 69 in Mr Jones’s report is a photograph of the terminal that was recovered from the debris and used as part of the cable head.  It shows evidence of arcing.  Similar evidence can be seen on another terminal shown in photograph 70.  Mr Braund explained that the terminals are made of brass which has a melting point of 880°C.  The heat of a fire would not cause the damage seen on that terminal. 

[148]    In his report Mr Jones said that it was possible that this arcing occurred when Mr McHugh reinserted the red phase fuse (at paragraph 7.4).  Mr Braund commented that if there had been a fault in wiring when Mr McHugh inserted the fuse then there would have been a flash–arcing as terminals came together.  However, he thought that it was unlikely that this would have happened at this time as the damage was substantial.  He would have expected Mr McHugh to have been injured had the arcing occurred at this time.  In his report dated 2 February 2010 Mr Braund concluded that the cause of the fire was an electrical fault.  It was clear that something major had happened.  The photographs showed that the metering cabinet had collapsed.  He reached the conclusion that the fire had started as a result of a fault in either the metering cabinet or the cable head or associated wires.  He was aware of evidence of overwiring, that is the use of non-standard wiring to replace a fuse which had blown.  This had occurred in both the cable head and in the consumer’s main switch.  He did not consider this to be a source of the fire.  He commented that there was no need for a fuse in the consumer’s main switch and many installations did not have them.  It was downstream of the meter panel and cut out fuses.  There was nothing in the RSA report that causally related to the fire. 

[149]    He was aware of the accounts given by the Scottish Power employees of “tracking like made” on the cable head and reports of moisture ingress.  Putting these two together he was concerned that the electrical equipment was left in a dangerous condition.  He was also aware of reports of moisture in the metering cabinet and that it may have been left in a dangerous condition.  All that was required to act as a conductor was a thin film of liquid such as might come about by dripping or condensation.

[150]    In his opinion the seat of the fire was the electricity supply apparatus.  However he had seen Mr Jones’s report in which he had concluded that the seat of the fire was in the beer cellar.  Having considered that report he thought that it was equally possible.  However whether the seat was in the electricity supply apparatus or in the beer cellar he was satisfied that the cause of the fire was an electrical fault.  He was still of the view that the cable head and the metering panel were implicated.  He was particularly concerned that the system had been left live.  Water was potentially in contact with live electrical parts which could cause fire.  He would not expect any knowledgeable person to allow the system to be left energised.  It was, he said, very risky.  Although two fuses had been removed from the cable head all three phases remained live.  The only protection that was left was in the electricity substation. 

[151]    In his opinion Scottish Power should have refused to energise.  All the fuses should have been taken out and if there was doubt about the cable head then Scottish Power ought to have cut the supply cable.  On the assumption that there was moisture and dirt or other metallic deposit in the cable head or metering panel, and that there was evidence of tracking leading to arcing, in his opinion the service cable ought to have been cut. 

[152]    The gap in time between the attendance of Scottish Power employees on Friday 7 October to the occurrence of the fire at about 6am on Wednesday 12 October did not concern him.  Tracking could go on for a very long time depending on the properties or insulation.  In his opinion there was evidence of a breach of integrity of the cable head.  The problems noted on Friday might well have combined on the following Wednesday. 

[153]    The flashing and noise reported by Mr Finlayson could only refer to tracking.  Water on the wall could explain what happened.  Mr Melvin’s findings were consistent with these assumptions.  When Mr Melvin used the Drummond test lights at the red phase, he had observed flickering and tracking.  This signified an intermittent fault on the red phase wiring which might be caused by discharge from tracking or some other defect in the insulation between the cut out and the consumer’s main switch.  There may have been multiple faults but tracking was more likely in the cable head itself. 

[154]    Tracking in the cable head, even if minor, is always serious.  It indicates a problem with the insulation and can cause significant problems.  Tracking was of concern anywhere but in the cut out there were high rated fuses.  If this was noted, then his opinion was that the electrical system was unsafe.  He agreed with Mr McHugh that the cable head required to be changed. 

[155]    Mr Braund was asked about the significance of burn or weld marks noted by Mr McHugh on the tail serving the red phase.  He said that this was usually the result of arcing.  It was sensible to cut off the damage and reterminate.  There must however be an explanation for the damage and he would have expected him to investigate.  Mr Braund was asked about the cleaning with PF wipes and commented that it might remove some metallic product and possible loose products of carbonisation.  It could not however repair damage to insulation.  No wipe could do that.

[156]    Mr McHugh had obtained a 200 amp fuse and inserted it in the red fuse which then blew.  This indicated a major fault on the red phase.  It suggested failure in the cable head or metering cabinet.  None of the consumer’s main switch fuses had operated.  He accepted that this observation was dependent on what had been recovered.  His recollection was that they had found fuse boxes for the bar distributor board, kitchen and heating and that all were intact.  Not all of the fuses had been found but from what were recovered none were blown.  Nor was there any evidence of overload such as melted wire.  The degree of energy to blow a 200 amp fuse was difficult to describe but the release of energy would create a loud bang and a flash and be sufficient to injure someone standing nearby.  Mr McHugh reported a bit of a flash.  That suggested damage or discharge across insulation.  In a three‑phase system it could cause damage elsewhere.  The large amount of energy dissipated could cause plastic to melt.  The fact that the yellow phase was also operated showed that the most likely explanation was water in three-phase junction box with a sufficient current to blow the fuse.  It would have boiled the water instantly and blown the yellow phase.  The system at this point was unsafe.  There were serious faults on at least two phases.

[157]    Scottish Power should at this point have asked for an investigation and not restored the electricity supply until they had received a satisfactory report.  They should have removed the blue phase as damage to the red and yellow phases could have affected the blue.  That however would not be sufficient if there was doubt about the integrity of the cable lead.  In that case the supply to the cable head should have been cut. 

[158]    Mr Braund was asked to comment on Mr McHugh’s observation that there were no signs of distress and that he decided to leave the blue phase in place.  Mr Braund’s view was that they could not reach that conclusion without withdrawing the blue phase.  He must have known of the presence of water.  He knew about the problem of the other two phases and that should have alerted him to the possibility of problems in the blue phase.  It was a mistake to leave the blue phase in.  The notice left by Mr McHugh indicated the necessity to replace the cable head and to cut the cable.  The cable head was extremely hazardous and there was no other way to deal with it. 

[159]    In Mr Braund’s opinion it was not necessary for Scottish Power to enter the building in order to cut the cable.  It often happened where there was a fire in the building.  In that case the electrical supply company may be called to cut the cable but would be unable to enter the building.  The plan available to the Scottish Power employees showed the cable serving the building from Wellington Street.  In his opinion there was little room for a difference of opinion on what ought to have been done.  The cable ought to have been cut.  It was a critical item.  A minor fault could very easily turn into a major fault very quickly.  That could come through further water ingress and further degradation of terminals.  Dirt and moisture was a potent source of tracking.  Scottish Power should have concern for the safety of the building and employees.  Given the water ingress they should have taken action. 

[160]    Even if the fault was in the consumer’s main equipment they should still have cut the cable.  If it had been cut then there would not have been a fire since power would have been cut to the whole system.

[161]    Mr Braund noted that the consumer’s electrical equipment suffered only heat damage whereas the supplier’s equipment, situated next to it, had suffered complete destruction.  He considered that if the fire had started elsewhere and spread laterally over the ceiling he would have expected both to be similarly affected.  The difference might be significant.  The panel had been fixed to a board which in turn was fixed directly to the wall.  The panel was now seen to be away from the wall and the board was very badly charred.  The meter panel had clearly suffered a fire attack and he thought it was possible that the fire had started there. 

[162]    The area above the metering panel showed clear evidence of severe arcing.  The severity of the charring to the boards holding the metering panel and the cable head was a natural consequence of a breakdown in the insulation and evidence of arcing.  The cable head had probably fallen away in the early stages of the fire.  Besides that can be seen the remains of the main electrical cable.  Again that showed clear evidence of arcing.  Mr Braund explained that the wiring would be dead by the time the fire attacked the insulation.  There would be no fuses.  The absence of blown fuses on the consumer’s side suggested a spread from here to elsewhere rather than the other way round.

[163]    The ceiling above showed the floor joints completely burned through.  Next to this was a gap through which the fire could spread into a void behind wooden panelling.  This could have allowed the fire to spread into the ceiling void.  It was however impossible to track the voids in the building given its state of collapse.

[164]    There was a significant amount of damage to the area of the walk-in chiller and particularly to the timber above.  There is a thermal insulation in the chiller which is flammable and that may account for the damage.  From the pattern of charring to the wood, it is clear that the fire was burning for a long time in that area.  Commenting on the possibility that the fire spread from there to the southwest corner where the supplier’s equipment was situated, he said that fire usually spread laterally and not usually into the corner.  However, he said it could do and the damage may be indicative of the fire starting in the area of the chiller.

[165]    Looking at photograph 11 in Mr Jones’s report he commented on the lack of joists which had apparently been burned away.  These were close to the supplier’s equipment.  He thought if the fire had spread to this point from somewhere else he would have expected some of the joists to be left.

[166]    In conclusion the interpretation of the evidence from the southwest corner indicated an arcing event leading to the ignition in the timber above the cut out.  It would then have spread from there to the beer cellar igniting flammable material there, in particular the thermal insulation in the chiller.  It also spread through gaps and voids to the ground floor and the rest of the building.  It was not possible to carry out a detailed examination and there was no evidence to say precisely where it started.  However at some stage there was a failure of the supplier’s equipment and that may well have been responsible.  There is no evidence of failure in the consumer’s equipment but that cannot be ruled out.  His assessment of the state of the consumer’s equipment came from the fact that there was no evidence of failure in the fuses which were recovered together with the fact that only one‑third of the wiring would have been live, i.e. the wiring from the blue phase.

[167]    There was no evidence of arcing on the metering cabinet or tails and accordingly suspicion must fall on the cable head.  Even with two fuses withdrawn the system was live and connected to insulation which was damaged.  Accordingly there was potential danger.  Even with the fuses out the lower terminals are still live.  If there was any bridging between the two then it could easily be discharged over the surface.  Any smoke generated could start material burning leading to a further breakdown.  Accordingly even if all the fuses had been removed there was still a potential danger. 

[168]    So far as the cause of the fire was concerned if the fire started in the cable head then the problem was likely to arise from the presence of moisture causing it to fail.  Alternatively there was evidence of carbonisation which indicates that the insulation was weakened or damaged.  Either of these scenarios held the risk of catastrophic failure.

[169]    In cross examination Mr Braund explained that he did not consider that there was sufficient physical evidence to say precisely where the seat of fire was or whether it was more likely in the beer cellar or at the southwest corner.  The catastrophic failure of the cable head would be something akin to an explosion.  Arcing can be cause or effect;  it could be the consequence of fire or heat or an electrical conductor. 

[170]    Mr Braund was challenged on whether it was possible to have tracking continuing for a number of days.  He was asked to give examples.  He said that he was unable to do so but he was aware of it in circuit boards and equipment installed outside.  He said that it was well documented.

[171]    On overwiring he said that the practice was dangerous but more so if it was at the cable head than in the consumer’s main switch.  If there was a failure at the consumer’s main switch then the fuses in the cut out will blow.  If however it occurs in the cut out then the only protection is in the sub-station.  He did not consider that the evidence of overwiring contributed to the fire. 

[172]    He could not exclude the possibility that the fire started in the consumer’s main switch.  He looked at all the fuses which had been recovered from the consumer’s equipment and none was blown. 

[173]    So far as Mr Jones’s report was concerned he thought that his analysis had a lot of merit but did not agree with all his conclusions.  So far as fire spread is concerned a lot would depend on ventilation.  A small fire starting in one area could cause a large fire in another area.  Turning to the RSA report he considered that it revealed no major defects but there were a number of things that required to be improved. 

[174]    Mr Braund was also referred to a diagram, figure 7 in Mr Jones’s report, which showed a gap between the basement and the void behind the seating.  He conceded that it was a concern that there was no damage in this area.  It was not however inconsistent with the hypothesis that fire had started in the supplier’s equipment. 

 

Graeme Campbell’s evidence
[175]    Mr Campbell visited the site on 13 October 2005 and took a number of photographs.  He returned on the 14^th along with Messrs Braund and Masson.  He entered the premises and took more photographs.  He returned on three other occasions – 17 October, 26 October and 3 November.  On each occasion he took photographs of his visit.  He identified his report dated 22 November 2005 and a supplementary report dated 16 August 2006.  He saw Mr Jones’s report after it was lodged on 23 February 2015 although he had been aware of his involvement prior to that date.  Having seen this report and considered its terms there was nothing in it which altered his conclusions.

[176]    On the available evidence he was of the view that the fire started in the southwest corner and spread to other areas of the building.  The limited extent of lateral fire spread in this area was suggestive of fire spreading quickly to the voids above.  He noted that the cable head and metering cabinet appear to have been located in the area where the fire started.  The fire damage in this area was severe while limited damage appears to have occurred to adjacent items.  He was of the view that the most likely cause of the fire was an electrical fault in the cable head or metering equipment.  There was no physical evidence to identify the precise nature of any fault that occurred in the supplier’s equipment.  However the coincidence of timing of the fire, the occurrence of the water leak and the notice on the cable head suggested that the fault that led to the fire was caused by water ingress to the cable head.  The notice on the cable head suggested that the defenders were aware of a problem at the cable head.  It would however have been necessary to undertake further work to consider whether it was appropriate to leave it energised. 

[177]    He explained that in the course of his visits on 13 and 14 October 2005 he had gained access to the building.  At one point he had got access to the basement at the southwest corner through a gap.  However he thought that this was for less than a minute.  He took some photographs and then left.  He said it was very dangerous.  He did not search the corner.  It was not possible to do a full inspection of the building because of its condition but it was apparent that it had involved all levels with the collapse of parts of the roof and floor structures.  The fire damage in the basement was largely confined to the beer cellar and parts of the kitchen.  The damage within the kitchen was generally above ceiling level where relatively severe charring was evident to the timber joists for the floor above.  There was a relatively large area of damage below ceiling level towards the north side of the beer cellar.  The charring to the timber in this area extended from low level to the underside of the floor above. 

[178]    Mr Campbell was asked for his views on Mr Jones’s evidence about the spread of the fire.  He said that the photographs, which he had taken and which Mr Jones had used in his report, only showed part of the picture.  It showed the damage after the fire but it did not show the sequence in which damage might have occurred.  It was clear that the fire had burned for a long time.  Looking at the photographs was not a reliable way of looking at how the fire spread.  Mr Campbell also noted the severe charring to the back boards which held the cable head and metering cabinet.  This damage was localised.  An unburnt cardboard box was evident on the floor beneath the charred back board.  He agreed with Mr Jones that the beer cellar was an area of significant damage.  He noted that part of the partition wall in the beer cellar had burned away.  The cable head was destroyed in the fire and he noted Mr Jones’ opinion contained within his report that it had been destroyed.  However some components from the cable head were found inside the metering panel.

[179]    Mr Campbell specifically addressed the issue of the potential seat of fire in his report.  He noted the extensive area of fire at the north end of the beer cellar.  It could be explained that the fire started in that location and spread to other areas.  However the localised damage that was evident at the southwest corner of the basement was not readily explicable as a result of fire spread from a fire that started elsewhere in the building.  Rather he was of the view that fire had started in the southwest corner and spread to involve other areas of the building.  Furthermore the limited extent of lateral fire spread at the southwest corner of the basement was suggestive of any fire in that area quickly spreading to the voids above.  He added that if the fire had started in the beer cellar and spread from there he would have expected damage in the consumer’s equipment before that in the southwest corner. 

[180]    He had considered a non-electrical fault but there was no evidence for this.  He did not smell any accelerant when he was in the building on 13 or 14 October.

[181]    He was referred to Mr Ferguson’s evidence that he had observed water running down the wall at the back of the electrical equipment and hearing evidence of tracking in the cable head.  He said that this suggested that water had got into the cable head and that was what was causing the tracking.  He considered that the evidence of the Scottish Power employees also supported his hypothesis.  The fact that a fuse had blown indicated a fault downstream.  When it was replaced it blew again indicating that there was still a fault.  The tests, including the one with the consumer’s main switch switched off indicated a fault in either the cable head or the metering panel.  It would appear that there was a tracking fault inside one or other of the pieces of equipment.  It was likely that this was due to moisture or water.  It could cause a fire. 

[182]    Mr Campbell was asked about the timescale.  There was a long gap between the discovery of the fault on Friday morning and the fire at 6am on Wednesday.  He was asked whether that gap of time caused him to question his hypothesis.  He replied that it was a long time but that electrical faults develop over time.  He was comfortable with the time period. 

[183]    In his opinion the available evidence indicated that faults had been found in either the cable head or metering panel.  These had not been diagnosed.  There was no testing or investigation carried out.  The equipment had been left energised.  This provided a credible explanation for the fire. 

[184]    He was asked whether there might have been a gap between the back of the seating and the wall in the bar on the ground floor in the southwest corner.  He thought it was highly unlikely.  People in the bar would throw things down there.  There was some evidence of smoke deposition but no charring in that area.  He said that he struggled to interpret Mr Jones’ report in that regard.

[185]    Mr Jones’ report contemplated two separate seats of fire.  One was in the beer cellar, the other was in the cable head.  Mr Jones speculated that the fire in the cable head started when water from the fire hoses got on to the cable head causing arcing.  Mr Campbell did not accept this possibility.  In his view any possibility of fire caused by water from fire was unlikely.  The water would put any fire out.  So it might cause a fault but not the fire.

[186]    He was unable to explain why there should be an unburned cardboard box almost directly under where the cable head would have been.  There is bitumen within the cable head.  It would have dripped down but it may not have got as far as the box.  He confirmed that he had asked to see the electricity test certificates.  He thought he had asked Mr Clark for them but they were not available.

 

Michael Jones’ Evidence
[187]    Mr Jones told the court that there was a lot of information which an investigator would normally have but which was not available in this case.  There was no understanding of the damage of the first floor roof above the kitchen.  There had been no inspection of the beer cellar.  It was not possible to say whether the fire had spread through the voids.  One must assume that it had but there was no physical evidence to confirm it.  There is only limited recovery of electrical equipment.  What had been recovered throws up an unusual aspect of overwiring for which there is no explanation.  There is no supporting information such as plans and diagrams of the electrical system.  He was asked to comment on the fact that the consumer’s fuses had not blown.  He said that it was not known how many distribution boards had been in the premises and some fuses were clearly missing.  So far as overwiring was concerned it indicated that at some stage there must have been a fault.  One would want to know who did it and why.  The overwiring to the fuse and the cable head was unusual.  One would not expect that.  The fuses in the consumer’s main switch were motor fuses which had larger fuse elements to withstand larger surges when a motor was started.  As a result it was possible to overload the supply fuse before the consumer’s fuse. 

[188]    The terminal shown in photos 69 and 70 of his report showed evidence of arcing.  He thought this might have happened when Mr McHugh put the fuse back in.  Mr McHugh reported seeing only a small flash but he thought that it would be a bright flash.  Although it was subjective it would not have been small.  This was substantial arcing which would normally have an effect on the eye and cause redness to the skin. 

[189]    The blue phase was left live.  It was assessed to be safe.  There was no evidence of arcing on top of the blue phase.  Accordingly that assessment appears to have been correct.

[190]    Scottish Power had a duty to maintain supply as best they could.  They cannot disconnect for their own convenience.  There must be an imminent threat of damage.

[191]    Tracking occurs on the surface of insulators between conductors.  If moisture falls between exposed conductors then a current may flow between them and a track is formed.  Generally it is benign as the water boils away but it may leave a scar.  If there is a repetition then the scar may deepen enough to conduct directly.  This may lead to a short circuit which accelerates to produce a major event such as arcing. 

[192]    Usually water ingress is a reason for tracking.  For tracking to develop into arcing the surface must deteriorate until it becomes a conductor.  In this case for tracking to have continued from Friday until Wednesday there would need to have been a replenishment of water.  There was no evidence of subsequent water ingress.  If there had been failure in the cable head he would have expected to see damage in the neutral block.  Usually arcing affects all terminals.  Mr Jones considered that the photographic evidence showed that the bitumen in the cable head had run over the nearby trunking on the consumer’s equipment.  It was notable that it had not set a cardboard box situated nearby on fire.  In his opinion the bitumen was not burning.  If the fire had started in the cable head he would have expected it to have vaporised instantly in the explosion.  The metering cabinet showed evidence of a fire having occurred within it.  He suggested that this was caused by bitumen running through it and causing a strong fire within the cabinet.  This was suggestive of the cable head becoming involved at a later stage.  He cautioned that one had to be careful when coming across a fire damaged cable head at the scene of a fire.  The question was whether it was the cause of the damage or was itself damaged in the fire caused by some other process. 

[193]    With reference to photos taken by the fire service from outside the premises he pointed to some darker smoke.  This he said could be due to the bitumen catching fire.  This, together with reports of a light on in the upper storeys of the tenement would suggest that the cable head became involved in the later stages. 

[194]    The ground floor had collapsed above the beer cellar and kitchen walkway.  This indicated that the fire must have been burning there for a longer time.  Generally fire burned at the rate of 45 minutes per inch depending on the type of wood, its condition and the ferocity of the fire.  A half inch floorboard may burn through in about half an hour.  This strongly suggested that the fire started in the beer cellar and spread from there.  Any suggestion that the fire in the beer cellar did not occur until after the collapse was negated by the fact that furniture that had fallen through from the ground floor and had not burned.  If the fire had continued to burn then surely one would expect to see it damaged by fire.  There was a pattern of freely developing convective fire spread from the front of the beer cellar to the rear of the premises.  The damage to the internal faces of the partitions was greater than the external faces.  There was evidence of damage to the bar on the ground floor above the beer cellar.  This would suggest that the fire had spread up through the void for the beer pipes although there was no evidence of substantial free development of a fire at ground floor level.  There was strong evidence of vertical fire development though it was unclear how the fire would have spread through the voids. 

[195]    It had been suggested that the fire started in the cable head and spread in the void under the ground floor to other parts of the premises.  However there was no ceiling void in the southwest corner.  Had the fire started there he would have expected substantial damage to the ground floor ceiling above the cable head.  He suggested that there would have been a gap between the back of the seat and the window.  The windows failed and the ventilation would have acted as a draw.  The fire would have emerged into the ground floor and through the floor in the southwest corner.  From there it would spread radially through that part of the ground floor.  As this did not happen it was Mr Jones’s view that the fire did not start in the cable head.  The alternative would be if the fire had found a better chimney behind the panelling at the end of the ground floor.  In either event the fire would have broken into the lounge in the southwest corner and that would have been readily apparent when the fire service arrived. 

[196]    Had the fire started in the cable head the jetting of hot gases under the ceiling of the basement would have struck the partition wall of the beer cellar and been diverted downwards thereby generating greater burning on the outside of the beer cellar wall than the inside.  Before the fire could penetrate the beer cellar it would then have to burn through the partition wall and pass over the top of it.  One would expect to see far greater fire damage to the south faces of the partition walls than in fact occurred.

[197]    In Mr Jones’s opinion the evidence suggested that the fire originated in the beer cellar, being confined there and generating pressure which forced smoke into the voids that travel east west.  It then broke into the top of the partition which enabled it to pressurise the area to the north of the beer cellar and then into the voids that travel underneath the bar.  It is highly likely that the fire then spread up through vertical voids to higher levels of the building including the ceiling of the ground floor.  In the meantime other hot gases could have travelled south across the bottle store to reach the electricity supply apparatus.  Heat attack could well have caused the cable head to fail.  Burning bitumen would have melted down to the metering panel.  That would account for the large degree of burning in the cabinet which otherwise contained very little combustible material.  There were two alternative methods for the involvement of the cut out unit.  One was burning material falling down onto the cable head.  The other alternative was that water from the fire service found its way into the cable head.  The fact that the fire spread little further can be explained by the fact that the area was doused with water.

 

Submissions for the parties
[198]    Both parties made written submissions.  What follows is a synopsis of the most relevant points, insofar as not already dealt with.  Both submissions included analysis of the evidence and criticism of those aspects including expert evidence relied upon by the other side.  I have not recorded the detail of these submissions but have taken them into account.  

 

Submission for pursuers
[199]    Mr Moynihan founded on the acceptance by Mr Jones in cross examination that the flickering observed by Mr Melvin was indicative of a fault in the supplier’s equipment, either the cable head or metering panel.  Furthermore Mr Jones accepted that one could not be satisfied of the safety of the equipment until that fault was investigated, identified and rectified.  Further damage occurred when Mr McHugh subsequently inserted an approved fuse in the red fuse but he left before he could finish his task.  Although the defenders pled, by implication, that they were inhibited by the finding of asbestos it was critical that Mr McHugh had not suggested that that justified him leaving the building in an unsafe electrical state.  

[200]    The defenders could not rely on the division between the supplier’s equipment and the consumer’s equipment.  They must have regard to the foreseeable risk of an electrical fault from any part of the system because they have the power to disconnect on grounds of safety wherever the fault lies whether in their own equipment or the consumer’s.  There was a foreseeable risk of a fire.  Even a surmise that there had been water ingress that was likely to have affected the supplier’s or consumer’s equipment would be sufficient to give rise to a reasonable apprehension of fire.  That was compounded by the tracking observed in the cable head and the blowing of the fuses.  The inescapable conclusion was that the electrical equipment posed a fire risk.  The defenders ought to have been aware of that risk and to have cut the power supply to the building. 

[201]    Mr Moynihan submitted that the evidence showed that the fire was electrical in nature.  There was a material risk of an electrical fire when the defenders departed the tenement leaving it partially energized on 7 October 2005.  It would be wrong to maintain too sharp a division between the supplier’s equipment and the consumer’s equipment.  The supplier’s equipment did not act in isolation.  The fuses in the cable head were there for the protection of the whole system.  They would operate not only if there was a fault in the supplier’s equipment but also in the consumer’s equipment that did not trigger some intermediate fuse.  The pursuer’s primary case was that the fault occurred in either the cable head or metering panel.  But it was not periled on such a finding.  The case encompasses fault in the consumer’s equipment.  The call out on 7 October was because a fuse had blown in the cable head.  While they were there two further fuses had blown.  It was clear that there was a fault in the system.  The building could not be safely energized until the fault was identified and rectified. 

[202]    The submission that the system should be looked at as a whole finds reinforcement in the Electricity Safety, Quality and Continuity Regulations 2002, in particular regulations 23, 26 and 29.  The defenders were by law entitled to disconnect the supply with consent under regulation 29(3) or without consent under 26(3) if they considered that to “justified on the ground of safety”.  

[203]    Mr Jones had misinterpreted regulation 26(3) as meaning “imminent” danger.  That word did not appear in the regulation and his assertion in chief that there has to be imminence within an hour or so was a grave exaggeration.  

[204]    Breach of a statutory duty did not give rise to civil liability; Morrison Sports Limited v Scottish Power 2011 SC(UKSC) 1; Smith v Eastern Power Networks [2012] EWHC 2541 (TCC) and [2012] BLR 554.  However the terms of the regulations may have a bearing on the content of the duty of care.  At the very least they were relevant to negate the defence.  The defenders could not maintain that a breach of their duty of care was justified by their need to implement a statutory duty.  There was no statutory duty to supply electricity if there is a foreseeable risk of fire.  

[205]    There was however a more positive submission that could be made on the basis of the regulations.  The defenders admit duties of reasonable care for (a) the safety and structural integrity of buildings liable to be affected by their acts and omissions and (b) to have due regard to the risk of fire.  It was submitted that those duties would extend to taking reasonable care to protect against the risk of fire that the defenders knew or ought to have known was posed by either (a) the supplier’s equipment, or (b) the consumer’s equipment or (c) any combination of the two.  That was particularly so in this case where Mr Melvin knew that the red fuse had been over wired and he had detected tracking indicative of a fault that could have developed over time.  Mr McHugh had been asked to do what was necessary in order to make the premises safe.  He had been on the brink of removing the blue fuse but took pity on the lady struggling with the equipment.  Removing the blue fuse would have cut the power to the consumer’s equipment.  Mr McHugh chose not to do so rendering the consumer’s equipment partially energised.  Accordingly the defenders required to accept responsibility for the fault in the system even if it was in the consumer’s equipment. 

[206]    Mr Fergusson had given direct evidence of water in the vicinity of the cable head but there was other evidence which supported the contention that water had found its way into the basement and affected the supplier’s equipment.  Mr Moynihan referred to the evidence of the depth of water in the ground floor observed by Mr Nicolson and the acceptance by Mr Jones that water could have worked its way down from the ground floor.  The report to the defenders on the Friday morning was to the effect that “water has come through yesterday from upstairs and has damaged main fuses – partial supply to business premises”.  When Mr McHugh had put up his notice he had surmised that water ingress was the source of the problem.  It was clear from Mr Braund’s evidence that very little moisture could cause problems.  

[207]    Mr McHugh had surmised that the water had got into the supplier’s equipment but also possibly the consumer’s equipment.  That coincided with Mr Braund’s view that both sides of the equipment may have been involved.  Although Mr Braund’s preferred view was that the fault was in the cable head he considered that the existence of the problems at the cable head meant that the cable should have been cut.  If that had been done then the risk of an electrical fire would have been eliminated.  Mr Campbell was of a similar opinion.  

[208]    The defenders ought to have been aware of the risk of fire.  The suggestion that the fact that they had to leave the premises because of the risk of asbestos and that affected their duty of care was not well founded.  Mr McHugh had been asked to make the system safe.  He had reported that he had “made it safe for the night” but he had accepted that when he left the premises he did not know whether the premises were safe.  Even if the court accepted that they had to leave because of the finding of asbestos and that affected their duty of care the defenders had been called back on 11 October.  They did not do so.  The defenders had led no evidence that the presence of asbestos played any part in the decision not to attend on 11 October. 

[209]    Mr Braund had been clear that in his opinion in the circumstances presented to the defenders they ought to have cut the cable.  Mr Moynihan submitted that the defenders could not resist this conclusion by reference to a perceived inability to cut the cable on 7 October.  In the first place they led no evidence to explain why they could not have cut the cable or done what was otherwise necessary to render the property safe on 11 October.  Mr McHugh’s position was that he would have cut the cable as he left had it been found.  His reasons for not cutting the cable were linked to the equipment “being made safe for tonight”.  He had not cut the cable because he expected to be back over the weekend. Although the better course was to test at the cable head whether the cable had been cut (and that would mean re-entering the premises) it would not happen where, for example the building itself was on fire.  According to Mr Melvin cutting the cable would not have affected other consumers.  There was no reason to believe that had Mr McHugh wanted to cut the cable he could have done so.  He did not do so because he expected to be back over the week end. 

 

Submissions for the defenders
[210]    Mr Hanretty submitted that it was necessary in a case of this complexity to discuss standard of care.  It was not necessary for the pursuers to make averments in relation to ordinary or trade practices;  ICL Tech Ltd and others v Johnston Oils Ltd 2012 SLT 667.  There must however be evidence before the court of such trade practices before the extent of any duty of care can be identified;  McLaughlin v Craig 1948 SC 599, per Cooper LP at 611.  There had been no evidence from the pursuers of the trade practices of electricians or jointers.  Mr Braund had conceded his own limitations when asked to comment on the training of electricians.  In the absence of such evidence the claim, he submitted, must fail. 

[211]    I was reminded that the onus of proof was on the pursuers and that the standard of proof was one of balance of probabilities.  The pursuers had been unable to identify precisely where the fault lay.  On Mr Braund’s evidence it was as likely to be the consumer’s equipment as it was to be the supplier’s equipment.  The case was similar to those found in Mitchell’s Administratrix v Edinburgh Royal Infirmary 1928 SC 47 (at page 54) and The Popi M [1985] 1 WLR 948 (at 956).  A 40% probability was insufficient.  Mr Braund had said that both scenarios were equally likely but had conceded the possibility of other sources of ignition.  As a matter of arithmetic 100/(2x + y) cannot provide a greater than 50% probability.  Therefore based on Mr Braund’s evidence the pursuer’s claim must fail.  He acknowledged that Mr Campbell’s evidence was to the effect that the fire was caused within the defender’s installation.  However he had failed to identify the fault.  He had also conceded that he had failed to fully consider the possibility of an intruder. 

[212]    The pursuers’ inability to identify the precise fault which is said to give rise to the ignition was fatal to the claim.  The circumstances were a fortiori those in the case of McGlinchey v General Motors [2012] CSIH 91, a case under section 2 of the Consumer Protection Act 1987.  It was not the position that alternative non negligent explanations cannot be found.  Even the application of common sense suggested a possibility of a dropped cigarette by an intruder as opposed to anything more sinister.  The case for the pursuers could not be said to have been established on a balance of probabilities.  

[213]    The inability of the pursuers to demonstrate the precise cause of the failure is necessarily consistent with an attempt to prove the pursuers’ case by inference.  Generally speaking that approach to causation involves the application of the maxim res ipsa loquitur.  As a matter of law the maxim has no application in this case.  It applies where the res is under the management or control of the defenders or their employees;  Milliken v Glasgow Corporation 1918 SC 857;  O’Hara v Central SMT 1941 SC 363.  On the evidence it was abundantly clear that the premises were under the control of Mr Nicholson.  Again it could not be said that the pursuers had discharged the onus upon them. 

[214]    Under the heading “the duty of care – ignition within the defenders installation” in the written submissions the defenders contend that there was no duty incumbent upon them to de-energise the building by cutting the service cable until the electrical installation had been found to be safe.  The evidence did not support the contention that the defenders owed such a duty.  In the first place there was a statutory regime in place in relation to electricity supply and the obligations incumbent under statute upon the defenders.  It was no part of their obligation that they police third party premises.  On the evidence the cable head and metering panel had been left safe.  While Mr McHugh had given thought to the removal of the blue fuse there was no causal connection between that fuse being live and any source of ignition.  Mr McHugh took a conscious decision to leave in the blue fuse for the assistance of those undertaking remedial work.  He described the removal of the blue fuse as being “extra safe” but as far as he was concerned he left the premises safe.  

[215]    Absent any findings in fact in relation to the defect within the cable head it cannot be said that the non-rectification of such a defect was negligent.  For an example of a case involving a defective cable head I was referred to Smith and others v South Eastern Power Networks [2012] EWHC 2541.  The evidence of Mr Morrison supported the view that there was no such duty.  He did not think it necessary to isolate any of the premises other than those served by the mainboard in the bar.  

[216]    In considering the reasonableness of the defenders’ approach regard must be had to the urgency of the evacuation situation presented to the defenders’ employees, the availability of electrical expertise to the first and eleventh pursuers, their own commercial expertise and experience and the necessity involved in the requirement to prove dead the relevant equipment within the first pursuers’ premises.  

[217]    There was no duty of care in respect of ignition within the first pursuers’ installation.  There could be no causal connection between the defenders’ actings and omissions and any ultimate ignition.  There is no duty of care owed to any other proprietor within the premises;  ICL Tech Limited v Johnston Oils Ltd (No. 2) 2013 SLT 1090.  The position was on all fours with the analysis found in Sellars v Best [1954] 1 WLR 913.  On the pursuers’ analysis even if the defenders had been able to replace the cable head the defenders would have remained liable for the fire. 

[218]    Mr Hanretty also submitted that there was no causative link between any breach of duty and the fire.  The pursuers’ experts had been unable to map the spread of the fire.  Mr Braund’s evidence acknowledged two competing sources for the fire.  In as much as he appeared to accept to some extent the possibility of other causes it would appear on the basis of the evidence that the pursuers are unable to establish that the seat of the fire was within the defenders’ installation;  Wilsher v Essex Area Health Authority [1988] AC 1074.  Moreover his evidence was dependent on the evidence of moisture in the cable head.  If the court determined as a matter of fact that the cable head was dry then it followed that the alternative of the beer cellar as the seat of the fire was the most probable. 

[219]    On the assumption that the court found that the cause of the ignition was somewhere other than in the cable head Mr Hanretty moved the court to find that there was contributory negligence on the part of the first and eleventh pursuers to the extent of 90%.  Accordingly the sums due to the first and eleventh pursuers should be reduced and they should be found liable to make a contribution to the same extent in any award of damages to the second to tenth pursuers, all in terms of the sixth and seventh pleas in law. 

 

Discussion
Where did the fire start?

[220]    I have little difficulty in concluding that the fire was an electrical fire.  Mr Jones conceded that if human agency can be ruled out then the fire must be an electrical fire.  For the reasons I have already gone through I find it relatively easy to conclude that there was no intruder and that any other agency, such as rats or mice, can also be excluded. 

[221]    The pursuers argue that this is a sufficient starting point for their case but the primary position is that the fire started in the cable head, or at the very least the defenders’ equipment.  That of course is disputed.  Mr Campbell is of the opinion that the evidence supports the seat of fire was in the south west corner and the most likely cause was a fault in either the cable head or metering panel.  Mr Braund’s initial position was that the fire had started as a result of a fault in either the cable head, the metering panel or associated wiring.  Having seen Mr Jones’s report he concluded that it was equally likely that the fire had started in the beer cellar.  Mr Jones’s opinion was that the fire started in the beer cellar. 

[222]    Before looking at the evidence I need to deal with Mr Hanretty’s submissions regarding onus of proof and standard of proof.  The onus of proof is of course on the pursuers but the point Mr Hanretty makes is that the facts in this case make it impossible for the court to reach a conclusion as to where and how the fire started.  He submits that the facts of this case are similar to the situation in Mitchell’s Administratrix v Edinburgh Royal Infirmary and The Popi M.  In Mitchell’s Administratrix Alness LJC said: 

“Onus as a determining factor of the whole case can only arise if the tribunal finds the evidence pro and con so evenly balanced that it can come to no such conclusion.  Then the onus will determine the matter."  (page 54).  

 

[223]    In The Popi M the issue was whether a ship had sunk as a result of perils of the sea, in this case being struck by a submerged submarine.  There was no evidence that it had been but by a process of elimination this theory, regarded by Bingham J (as he then was) as highly improbable was found to be proved.  In the House of Lords Lord Brandon of Oakbrook noted that it was no doubt on the unjudicial dictum of Sherlock Holmes in The Sign of Four, who said to his 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?" that the judge had reached his conclusion.  Their Lordships disapproved of such an approach. 

[224]    In effect no judge should feel compelled to decide between two competing theories of what happened, particularly if the outcome is otherwise improbable.  In such a situation the pursuers would simply have failed to discharge the onus of proof. 

[255]    Mr Hanretty coupled his submission on onus with an arithmetical approach and submitted that since there were two equally competing theories as well as other possible sources of fire that could not be eliminated the pursuers could not prove their case on a probability of greater than 50% and the case must fail. 

[226]    The problem with these submissions is it assumes that equal weight can be given to the two competing theories as to where the fire started.  It also assumes that because its not possible to completely eliminate other possibilities they should remain as factors in reaching my decision.  For reasons I will outline both of these assumptions are wrong. 

[227]    I am not bound to accept Mr Braund’s approach that it is equally likely that the fire started in the beer cellar as it is in the defenders’ equipment.  I conclude that on the balance of probabilities the fire started in either the cable head or the metering panel in the south west corner. 

[228]    All three experts agree that there are two areas of very significant damage consistent with being the seats of fire, the south west corner and the beer cellar.  That is apparent from an examination of the fire damage.  But as Mr Campbell said that can only show where the fire has been, not its progression.  Mr Campbell’s conclusion was that the damage in the south west corner was more localised and not readily explicable as a result of fire spread from a different part of the building.  There was an ignition source in the south west corner and there was evidence of damage which could lead to ignition.  

[229]    I also consider it significant that when the fire service arrived it was the south west corner that appeared to be alight.  When Mr Cairns and the other officers opened the beer hatch they saw the fire moving swiftly away from the corner towards the front of the building – that is towards beer cellar.  I have already commented on Mr Jones’s evidence in relation to that matter.  He clearly thought it was significant enough in support of his theory.  Unfortunately he got it wrong.  In my opinion it supports the pursuer’s primary position that the source of the fire was in the defenders’ equipment.  

[230]    As for the damage in the beer cellar Mr Braund pointed to the existence of highly inflammable thermal insulation in the adjacent kitchen walkway.  It seems probable that at some point the fire spread to that point igniting it and thus acting as an accelerant.  This would explain the deep charring at that point. 

[231]    It is of course clear that at some stage there was a fire within the cable head which largely destroyed it.  Mr Jones postulated that it could have been caused by water from the fire hoses but I prefer Mr Campbell’s repost that the water would also douse any flames.  In any event that scenario appears to me to be inconsistent with the observations of Mr Cairns as described above.  

[232]    It has to be acknowledged that there are anomalies.  Both Mr Braund and Mr Campbell were unable to explain the relative lack of charring on timbers in the void near the window.  Mr Campbell was also asked about a cardboard Magners box which appeared to be underneath the area of the metering box and the cable head and was relatively unscathed.  However it seems to me that whether the fire started in the beer cellar and moved to the south west corner or vice versa the same difficulties arise.  Mr Jones too was unable to explain the mechanism of spread to the upper floors and assumed, perhaps rightly, that there were unknown voids.  

 

What started the fire?
[233]    There is of course no direct evidence to show how the fire started.  What the pursuers have sought to do as I understand it is to present a circumstantial case based on the factual evidence that is available and expert opinion.  In my opinion on the balance of probabilities the fire started as a result of an electrical fault in the defenders’ equipment.  Give the total devastation of the cable head I conclude that it most likely occurred within the cable head itself.   

[234]    Mr Hanretty argues that the pursuer’s inability to identify a precise fault is fatal to their claim.  He submits that the circumstances are a fortioro those in McGlinchey v General Motors.  That was a case under the Consumer Protection Act 1987 in which the pursuers had to prove a defect in the manufacturing or design.  Having regard to the dicta of Lord Brandon in The Popi M, cited above, the Lord Ordinary had come to the conclusion that he could not conclude that the pursuers had discharged the onus and established the existence of a defect.  The Inner House refused the appeal. 

[235]    In my opinion one has to exercise caution when considering what has to be proved to meet a statutory test and what might have to be proved in order to establish liability at common law.  In any event I do not consider that it is necessary to prove a precise fault in a situation such as this.  If a person has responsibility for a system and is giving a warning that there is a fault within the system and either ignores it or inadequately responds to the warning then I do not think it necessary to prove the exact location of the fault within the system in order to establish liability.  

[236]    It is clear that there was a considerable amount of water in the ground floor following the flood.  Mr Nicholson described it being some 4 to 6 inches on the floor in the Wellington Street end of the bar.  There is also no doubt that by Friday morning moisture had seeped down to the basement.  I am satisfied that on the evidence there was moisture in the defenders’ equipment.  In the first place that was the report to the defenders on the Friday morning to the effect that water had come through from upstairs and damaged the main fuses.  That can only refer to the fuses within the cable head.  When Mr McHugh attached his warning note to the equipment he was making it clear that water had water had affected the cable head.  Although he explained that he surmised that this was the case in my opinion it is telling that at the time he ascribed the origin of the fault as being water ingress.

[237]    Mr McHugh said that there was evidence of three or four drip marks on the wall above the electrical equipment.  He found there to be moisture in the metering panel directly below the cable head.  Although he said the cable head was dry he also said that he found carbon near the red phase. 

[238]    There is also direct evidence of moisture on the cable head itself.  That evidence came from Mr Fergusson.  I have considered his evidence with particular care as he did appear to contradict himself in cross examination and then come back in re-examination.  He initially used the term “arcing” when he meant tracking and he also suggested that the cable head was at waist height when it was clearly higher up.  On the other hand he is an experienced electrician.  He gave a clear description of tracking in the cable head and he was able to describe what the cable head looked like even if he positioned it slightly further down on the wall than it was. 

[239]    Most of the consumers’ fuses appear to have been recovered and none showed any sign of damage.  The system had been tested with the consumer’s main switch off and there was still evidence of tracking.  This gives further support to the conclusion that the fault was in the suppliers’ equipment rather than the consumers’.   

[240]    I prefer Mr Campbell’s clear and cogent opinion based on the evidence before him that the cause of the fire was an incendive electrical fault in either the cable head or metering panel.  That is supported by Mr Braund.  I consider that the evidence of water ingress into the basement of water affecting the cable head leading to tracking, of moisture in the metering cabinet, of tests disclosing faults in the system together with the coincidence of the timing of these events provides sufficient evidence to allow me to conclude on a balance of probabilities that the cause of the fire was water ingress into the defenders’ equipment.  That led to tracking which continued to develop over time until the point when the situation became critical leading on to arcing and the incendiary event.  

[241]    Both Mr Braund and Mr Campbell were comfortable with the timescale between the water ingress and the outbreak of the fire.  They emphasised that electrical faults can develop slowly.  Both Mr Braund and Mr Jones referred to the 6^th edition of Kirk’s Fire Investigation by John DeHaan.  At page 398 he discusses evidence that something that is supposed to be an insulator becomes a semiconductor.  He goes on: 

“This often occurs over an extended time and at such a slow rate that it is not readily detectable until the conductive path it creates can conduct so much current that massive heating can occur.  For instance if an insulator absorbs moisture a small current can flow producing some heat.  This heat can slowly degrade organic insulation in the vicinity and turn some of it to carbon.  Once enough carbon is formed between the conductors more current can flow along the carbon path, providing localized heating and further degradation… As the process continues, the current progressively increases as more and more carbon is formed.  Finally unless a breaker or fuse functions an arc may be struck and the carbonized insulation ignited resulting in a possible fire.”

 

That seems to me to be an entirely credible account of the progression of events and supportive of Mr Campbell’s and Mr Braund’s opinion as to how the fire started.  

[242]    It does follow from that finding that the fire could only have occurred if the defenders’ equipment was energised.  If it had been de-energised then the fire would not have occurred.

[243]    Before leaving this section I should deal with the issue of overwiring which was found in both the cable head and the consumers’ equipment.  There was no evidence as to who was responsible though as the tenant one has to suspect that Mr Nicholson must at least have been aware of it.  He was also unconvincing when answering Mr Hanretty’s questions on his knowledge of electrical matters.  However both Mr Campbell and Mr Braund were satisfied that they played no part in the cause of the fire.  Mr Jones when confronted with this point in cross said that it was evidence of bad practice.  It undoubtedly is but I agree with the consensus of expert evidence that overwiring did not cause the fire.  

 

Duty of care
[244]    The pursuers plead that their loss and damage was caused by the defenders or their employees.  

“It was their duty to take reasonable care for the safety and structural integrity of buildings liable to be affected by their acts and omissions.  It was their duty to have proper regard for the risk of fire.  In so doing it was their duty to de-energize the tenement by cutting the electricity service cable outside in the street until the electrical installation had been dried out, inspected and tested and shown to be safe.”  

 

The defenders admit duties of care, though not the specific duty of cutting the cable, and aver that they fulfilled all duties incumbent upon them.  They then aver: 

“They were prevented from completing their work cut the electricity service cable in the street, to confirm that it had been cut and to replace the cable head by circumstances beyond their control, requiring to leave the building due to the discovery of asbestos (sic).  In any event they left the tenement in a safe condition without any risk of fire from the meter panel, the cable head or any wiring belonging to them or under their control.” 

 

[245]    In my opinion the defender’s duty of care extended in this case to a duty to cut the supply to the premises by cutting the cable.  They were the company that supplied power to the premises.  The equipment in which the fault started was their equipment.  The dangers of leaving the equipment energised in the circumstances before them were in my opinion plain and obvious.  The possible consequences of doing so were also well known.  As an electricity supply company they had a number of statutory responsibilities.  While breach of these duties cannot found a duty of care they had the legal authority to cut the supply. 

[246]    In McLaughlin v Craig the First Division held that the conduct of, in that case plumbers, was to be judged ab ante by reference to the standard of the reasonable skill and foresight of the average competent tradesman.  It was not suggested that it was necessary for the pursuers to make averments in relation to ordinary trade practices but there had to be evidence of such practices before the nature and extent of any duty of care could be identified.  In this case there was no such evidence.   Mr Hanretty says that is fatal to the pursuers’ case. 

[247]    In ICL Tech Ltd v Johnston Oils Ltd 2012 SLT 667 Lord Hodge examined the development of the law on the standard of care in cases of professional negligence or where some trade or skill is professed.  He analysed the dictum of Clyde LP in Hunter v Hanley 1955 SC at pages 204 to 205 and concluded that it contained two elements.  It is in part an application to the particular circumstances of medical practice the wider rule which had long been established in Scots law spondet peritiam artis, in relation to persons of skill but also afforded protection to the medical profession.  But he pointed out that even in the field of medical negligence the court can override the professional opinion of the most distinguished experts;  see Bolitho v City and Hackney Health Authority.  At paragraph 21 of his opinion Lord Hodge states  “the deference which the law shows to professional or trade opinion and practice, and its willingness to override the professional viewpoint in asserting what the duty of care requires, depend on the particular circumstances of the case.”  And later “But the following of a generally accepted professional practice may not protect a defender from liability if the practice involves a foreseeable and readily avoidable risk”. 

[248]    In French v Strathclyde Fire Board 2013 SLT 247, a case involving decisions made by fire officers in an action of damages arising out of injuries to two fire officers while fighting a fire, Lord Drummond Young agreed that the principle spondet peritiam artis is not confined to professions.  He postulated a spectrum running from the classic Hunter v Hanley situation on the one hand to the ordinary employer’s liability on the other.  

[249]    It appears to me that whether evidence of professional or trade practices is required in any particular case will depend on a number of factors.  These include the nature of the impugned action or omission, the degree of skill or expertise required and the nature and foreseeability of the risk.  

[250]    On Friday 7 October the defenders, through Mr Melvin, had evidence of a fault.  He tested the cable head using a Drummond lamp while the consumers’ main switch was off.  He observed flickering and he advised that the cable head should be replaced.  He told the call centre of “tracking like mad” although he explained that any degree of tracking is a problem and indicative of a fault that can develop over time.  The jointer Mr McHugh was part of a team which included labourers to dig up the road to cut the cable.  They started digging, in the wrong place as it happens, but it is clear that the intention at that stage was to cut the cable.  They had the plan on the laptop to locate the cable but had focussed on the wrong part. 

[251]    Mr McHugh inspected the equipment.  He found water or moisture in the metering panel.  In the cable head he found evidence of carbon at the top of the red fuse which had been removed.  He found a weld mark on the tail which he cut and reconnected.  He cleaned it up and reinserted the red fuse.  There was a small flash and both it and the yellow fuse blew.  That really is how matters stood when the defenders’ employees left the premises.  I pause to observe that at that stage they could be in no doubt as to the fact that there was a fault in the system.  They could not identify where it was but they must have suspected, given Mr Melvin’s observations that any fault was not isolated to the consumers’ equipment.  As to where in the defenders’ equipment the fault lay they could not say but they could not rule out any part of it including the cable head. 

[252]    Mr McHugh recognised the danger.  In the first place he attached the notice to the cable head.  Secondly he was going to remove the blue fuse but decided not to do so to enable the lady who he assumed was from environmental health to use her equipment.  Had he removed the blue fuse it would have isolated the downstream equipment including the consumers’ equipment and the metering panel.  However, even if the blue fuse had been removed, the cable head would have been left energised.  

[253]    Mr Braund was clear in his evidence that the cable head had been left in a very dangerous position.  He pointed in particular to the fact that both the red and yellow fuses had blown indicating that there were serious faults in both phases.  He also pointed to Mr Melvin’s account of tracking in the cable head.  There was carbonization in the cable head which would have compromised the insulation.

[254]    Mr Jones’s position was that there was nothing wrong if the cable head was neat and tidy inside.  The qualification is important because I do not consider that on the evidence it could be said that the cable head was neat and tidy.  Some time was spent with both Mr Jones and Mr McHugh exploring the use of PF wipes.  Mr McHugh was clear that he had used PF wipes before he reinserted the red fuse.  He was less clear about whether he used the PF wipes after both the red and yellow fuses had blown but he thought he would have down.  I accept that he probably would have cleaned the carbonisation.  But while PF wipes can remove carbon deposits they cannot repair the damage to insulation caused by carbonisation.

[255]    Mr McHugh accepted that whether the equipment was safe or unsafe was unknown at that point.  With some hesitation he recognised that there was a risk of fire but explained that he expected to be back in the premises over the week end to complete the job.  He told the controller that he was unable to complete the job.  His message was that he had made it safe for tonight.  So far as cutting the cable was concerned he said that he was happy to leave it for that period of time, meaning that he expected to be in over the week end to complete the repair.  He also accepted that if the cable had been located he would have cut it. 

[256]    A number of things follow from this evidence.  First that the defenders knew of the fault and that as a first step they required to replace the cable head.  They knew that there was a risk of fire.  They knew that while they could isolate a significant part of the system by removing the fuses the only way of isolating the cable head was by cutting the cable.  

[257]    I do not consider that this raises any great issue of trade practice.  The risk of fire was obvious and it was readily avoidable by cutting the cable.  While it is of course for the pursuers to prove their case there was no hint in any of the evidence of any other method of dealing with it, save perhaps by cutting supply at the substation which would have affected other consumers.  

[258]    The defenders say that they were prevented from cutting the cable because of the finding of asbestos and the instruction to leave the premises, “pretty sharpish”.  However the instruction was not unqualified.  It was to make the system safe before leaving. I am not convinced that the instruction to leave meant that they could not fulfil their duty to make the premises safe.  In the first place there were still people in the premises, including Mr Clark and Mr Nicholson.  There was a threat to health but it was upstairs in the bar area not down in the basement.  There was time for Mr McHugh to write the notice and place it on the cable head.  Accordingly I do not think that it has been shown that the instruction to leave meant that the defenders could not fulfil their duty of care.

[259]    The defenders also said that they could not test that the cable had been cut because to do so they would need to have access to the cable head and to do that they would need to re-enter the premises.  Again I am not convinced that the instruction to leave meant that they could not have re-entered the premises for the limited purpose of testing.  Other people remained in the premises.  Others were there on the Monday including Mr Nicholson, Mr Clark and the surveyor, Mr Halley.  But even if that the defenders considered that for health and safety reasons they could not enter the premises there was evidence that in other situations where there was danger, such as a fire in the building, the cable would be cut outside without the requirement to go back into the premises to test the cable head.  

[260]    It appears that repeated attempts were made by Mr Nicholson to get the defenders to return on Tuesday.  There was no explanation as to why they did not do so.  Had they done so and cut the cable at that time then as I have found the fire would not have occurred.  

[261]    Accordingly I have found that the defenders were in breach of their duty of care by not cutting the power supply to their equipment.  Their failure to do so caused the fire. 

 

Contributory negligence
[262]    As Mr Hanretty recognised these pleas would only be of significance if I had found either that that the fire had started in the consumers’ equipment or that it was an electrical fault but that I was unable to say whether it was in the defenders’ equipment of the consumers’ equipment.  As I have found that the fire started as a result of a fault in the defenders’ equipment this question does arise.  If it did then it would have raised some difficult questions.  The first and eleventh pursuers also owed duties of care.  They did not take steps to isolate their equipment in the way they perhaps should have done.  Because of my findings in fact I have not had to address Mr Moynihan’s argument that it was enough for the pursuers to point to a fault in the system for fault to be imputed to the defenders.  At the very least there would have been significant issues of contributory negligence to have considered. 

 

Decision
[263]    For the foregoing reasons I find that the defenders are in breach of their duty of care.  I shall, as agreed, assoilzie the defenders from the eleventh conclusion of summons.  I shall sustain the first and second pleas in law for the pursuers and repel the pleas in law for the defenders.  I shall put the case out by order to update the calculations of interest and deal with expenses.