SHERIFF C.A.L. SCOTT

CA187/01

 

CARLTON HOTEL (EDINBURGH) LIMITED T/A THE CARLTON HIGHLAND HOTEL v SCOBIE & McINTOSH (CATERING EQUIPMENT) LIMITED

 

Glasgow, 7 April 2006

 

 

The Sheriff, having resumed consideration of the cause, finds the following facts to be admitted or proved:

 

 

FINDINGS-IN-FACT

1.                  The pursuers own and operate the Carlton Highland Hotel, Edinburgh, and did so as at 25 February 1996.

 

2.                  Prior to 25 February 1996, the kitchen at Carlton Highland Hotel, Edinburgh contained inter alia the Falcon deep fat fryer, model GH1860, referred to on record (hereinafter referred to as "the fryer").

 

3.                  The fryer was designed to heat oil using gas burners.

 

4.                  The amount of gas applied to heat the oil within the fryer was not variable, in that the burners supplying the heat to the fryer were either fully on or fully off.

 

5.                  The fryer was designed so that the temperature of the oil contained therein could be controlled by means of a calibrated knob, indicating the temperature of the oil.

 

6.                  The fryer was designed to operate in such a way that when the desired temperature of the oil, as indicated on the calibrated knob, was reached, the burners would turn off; and when the temperature of the oil fell the burners would turn on.

 

7.                  The calibrated knob was attached to a "user thermostat" It, inter-alia, consisted of a phial of hydraulic fluid which expanded when heated and caused a control force to be exerted on the gas valve, which would in turn cause the gas supply to the burners to be turned off when the desired temperature was reached.

 

8.                  The user thermostat was designed to turn off the gas supply to the burners when the temperature of the oil reached the set temperature or 190°C, whichever was the lower.

 

9.                  The fryer also incorporated a "safety thermostat" which was designed to turn off the gas supply to the pilot light if the temperature of the oil reached 230°C.

 

10.              Once the fryer was turned on, a full supply of gas would be provided to the burners unless and until one or other of the thermostats caused the supply to be interrupted.

 

11.              Each of the safety and user thermostats, inter-alia, consisted of valves. When operated, each valve would shut and thereby prevent a flow-through of gas.

 

12.              The user thermostat was designed to operate, when its set temperature was reached, by cutting off the supply of gas to the burners of the fryer. In that event, the pilot light was not affected.

 

13.              The safety thermostat was designed to operate, when its temperature reached 230°C, by cutting off the supply of gas to the pilot light. That would in turn activate a flame failure device which would close the main gas valve. This would result in both the pilot light and the main gas burners being turned off. After such an event the pilot light would require to be relit before the fryer could be used.

 

14.              The oil which the pursuers supplied for use in the fryer was "Frytol" oil.

 

15.              Frytol oil was supplied in 20 litre containers.

 

16.              "Frytol" oil has a "smoke point" (the temperature at which the oil begins to smoke) of about 230°C.

 

17.              "Frytol" oil has a "flash point" (the temperature at which the oil emits vapour that can be ignited by a spark or flame) of about 348°C.

 

18.              "Frytol" oil has a "flash point" (the temperature at which the oil emits sufficient vapour that can be ignited by a spark or flame so as to result in sustained ignition) of about 358°C.

 

19.              "Frytol" oil has an auto-ignition temperature (the temperature at which it can spontaneously go on fire) of approximately 450°C.

 

20.              Once switched on, the fryer would have heated a well of oil, filled to the "fill" line, at a rate of 13°C per minute.

 

21.              Unless restrained by operation of either user or safety thermostat, the fryer would heat a well of oil, filled to the "fill" line, to the smoke point of 230°C in approximately 16 minutes; to the flash point of 348°C in approximately 25 minutes; to the flash point of 358°C in approximately 26 minutes; and to auto‑ignition temperature of 450°C within approximately 32 minutes.

 

22.              If less than six litres of oil were placed in the fryer, the level of the oil would have been below the level of the thermostat phials.

 

23.              If less than six litres of oil were placed in the fryer and the fryer were left to heat the oil unrestrained, flash point would have been reached within approximately 61/2 minutes, and auto-ignition point within approximately 8 minutes.

 

24.              Prior to 25 February 1996 the pursuers and defenders entered into a Maintenance Agreement, in terms of which the Defenders undertook to maintain inter alia the fryer.

 

25.              In terms of the Maintenance Agreement the Defenders agreed to undertake two maintenance visits per annum.

 

26.              A representative of the Defenders, Alexander Robertson, undertook a maintenance visit on 20 February 1996.

 

27.              In the course of that maintenance visit Mr Ronaldson inspected the fryer.

 

28.              The user thermostat was operational at the time of the inspection by Mr Ronaldson on 20 February 1996.

 

29.              At the time of Mr Ronaldson's inspection of the fryer, there was a leak at the drain valve.

 

30.              In the course of his visual inspection of the fryer, Mr Ronaldson did not drain the fryer of oil nor did he remove the fish grids at the bottom of the fryer.

 

31.              In the course of his inspection, Mr Ronaldson tested the thermostats of the fryer.

 

32.              Mr Ronaldson's test of the user thermostat was carried out by placing a thermometer in the oil of the fryer, setting the user control to its maximum setting, and checking that the thermostat operated at 190°C.

 

33.              Mr Ronaldson's test of the safety thermostat was carried out by placing a thermometer in the oil of the fryer, adjusting an uncalibrated spindle attached to the safety thermostat by making a quarter turn, and checking that the thermostat operated at about 200°C.

 

34.              It was possible to remove or disable the user thermostat prior to testing the safety thermostat, but Mr Ronaldson did not do so.

 

35.              As a result of the user thermostat not being disabled, the operation of the safety thermostat, when tested in the manner described by Mr Ronaldson, could only be checked if the spindle were turned far enough to bring the operating temperature of the safety thermostat below the temperature at which the user thermostat would operate, since otherwise the user thermostat would operate first.

 

36.              Even if the safety thermostat phial is absent or broken, turning the spindle thereof will, if it is turned far enough, have the effect of operating the safety thermostat by closing the valve, and consequently turning off the pilot.

 

37.              Mr Ronaldson was not aware of this (i.e. fact 37) at the time of his inspection of the fryer.

 

38.              The spindle of the safety thermostat only required to be turned just over a quarter turn before the valve would close.

 

39.              The combination of points 34-39 above meant that Mr Ronaldson's "test" of the safety thermostat was, to an extent, ineffective, in that it did not confirm that the safety thermostat mechanism was working.

 

40.              The phial of the user thermostat had a manufacturing defect which ultimately caused it to fail immediately before the fire of 25 February 1996.

 

41.              On 25 February 1996 between 5am and 6am, a fire broke out in the kitchen of the Carlton Highland Hotel, Edinburgh.

 

42.              The fire originated in the fryer.

 

43.              At around 5am, the fryer was filled with oil.

 

44.              There was sufficient oil placed in the fryer to cover the user and safety thermostat phials.

 

45.              Once the fryer had been filled with oil, it was switched on to heat up.

 

46.              At some point after the fryer was switched on, a flame was seen at the drain valve.

 

47.              This was a small flame which Mr Gilluley extinguished with a towel.

 

48.              There was no substantial leak of oil from the fryer.

 

49.              Shortly after the flame at the drain valve was extinguished, the oil in the well of the fryer began to smoke.

 

50.              After a further period of time, the oil in the well went on fire.

 

51.              It is uncertain whether the fryer was turned off.

 

52.              The fact that the main gas valve was found in the "on" position points away from the suggestion that it was turned off.

 

53.              If the fryer was turned off at any stage, this happened after the fire started in the well of the fryer.

 

54.              For the oil to have been ignited, it must either have reached a temperature of 348°C and have been ignited by an ignition source, or have reached a temperature of 450°C and have auto-ignited.

 

55.              There were various potential sources of ignition in the proximity of the fryer.

 

56.              The fire in the well of the fryer started a short time - no more than 10 minutes - before the fire brigade were called.

 

57.              At 5.59am on 25 February 1996 the fire brigade were called to attend the fire.

 

58.              The fire brigade arrived at 6.03am on 25 February 1996.

 

59.              The fire brigade fought the fire using, inter alia, foam.

 

60.              The photographs produced by the defenders as part of 6/1 of process were taken at some point after the fire and prior to 29 February 1996. These photographs disclose that the kitchen and the aparatus within (including the fryer) had been subjected to significant damage as a result of the fire.

 

61.              Mr Ronaldson returned to the hotel following the fire. He was also involved in refitting the kitchen.

 

62.              The fryer was examined by Mr Brooker four days after the fire, on 29 February 1996.

 

63.              By the time of his examination on 29 February 1996, the kitchen had been cleared and the fryer stored elsewhere. The location and conditions of storage are unknown. The fryer was returned to the kitchen for the purposes of the examination.

 

64.              When Mr Brooker examined the fryer, he found no trace of the safety thermostat phial. He removed the safety stuffing box and located the broken end of the capillary tube.

 

65.              The safety thermostat phial was not removed or broken off by Mr Brooker during his examination.

 

66.              The user thermostat phial showed no signs of blackening or oxidation, suggesting that it had been immersed in, and protected by, oil at the time of the fire.

 

67.              The fracture surfaces of the user thermostat phial were contaminated with cooking oil which required to be removed, again suggesting that it had been immersed in, and protected by, oil at the time of the fire.

 

68.              The user thermostat was tested and found to be non-operational after the fire. The safety thermostat wasn't tested.

 

69.              The user phial failed as a result of bending. The safety phial was removed through a "pulling action". The force required to remove the safety phial was far greater than that required to break the user phial.

 

70.              It is unlikely, from a metallurgical point of view, that the pan of the fryer could have cracked at temperatures such as would have been experienced prior to the fire (i.e. less than 450°C).

 

71.              After the fire, differences were noted as between the appearance of the safety stuffing box nut and the user stuffing box nut. The nature, extent and significance of said differences were not determined in any meaningful way.

 

FINDING-IN-LAW

 

The defenders are not in material breach of contract.

 

Therefore, sustains the defenders' second, third and fourth pleas-in-law; repels the pursuers' second and third pleas-in-law; assoilzies the defenders from the crave of the writ; finds the defenders entitled to the expenses of the action; allows an account thereof to be given in and remits same, when lodged, to the Auditor of Court to tax and to report thereon.

 

 

Sheriff

NOTE

 

Introduction

On 25 February 1996, a fire occurred in the kitchen of the Carlton Highland Hotel in Edinburgh. There is little doubt that the source of the fire was a Falcon deep fat fryer. However, the precise cause of the fire and the involvement, or otherwise, of 2 thermostats within the fryer were the matters upon which the parties joined issue.

 

The pursuers and the defenders had entered into a Maintenance Agreement whereby the defenders were responsible for maintaining the fryer. Some 5 days before the fire occurred, a representative of the defenders undertook a maintenance visit. As part of that visit the fryer was inspected. In the present action, much of the evidence concerned 2 thermostats, the "user thermostat" and the "safety thermostat". In simple terms, each of these devices were designed to prevent the fryer from overheating. However, each thermostat functioned differently and reacted to different temperature "thresholds".

 

The pursuers' case is based upon the proposition that, during his maintenance visit, the defenders' representative failed to notice that the safety thermostat was defective. In more refined terms, it was contended that, as at 20 February 1996, (which is agreed to have been the date of the visit as opposed to 22 February 1996 being the date referred to on record), the component of the safety thermostat known as "the phial", was missing and that, accordingly, the safety thermostat was defective.

 

Whilst it was a matter of agreement between the parties that the user thermostat was operational at the time of the defenders' maintenance inspection, it was also part of the pursuers' case that the user thermostat failed shortly before the fire with the result that the temperature of the deep fat fryer spiralled out of control.

 

It will be seen that a significant period of time has elapsed since the fire. The action itself was raised shortly prior to the expiry of the quinquennium. The passage of time was a theme taken up on behalf of the defenders during closing submissions, as was the absence of the deep fat fryer itself. It had been disposed of some considerable time prior to these proceedings. Its unavailability as a production meant that much of the evidence given was dependent upon what appeared or did not appear in photographs taken after the fire. However, the remains of the 2 thermostat devices were produced.

 

 

The evidence in the case took up 7 days and closing submissions occupied a further day. Unfortunately, it proved impossible to hear the evidence in the course of one, continuous proof diet. Adjournments resulted in considerable gaps between each diet.

 

At all odds, it should be recorded that the court was greatly assisted by the manner in which each side approached the case. In particular, both counsel for the pursuers and the solicitor-advocate for the defenders are to be commended for the way in which their competing submissions were presented and the clarity of their arguments. In addition, counsel for the pursuers helpfully produced a series of proposed findings-in-fact the bulk of which, after due deliberation, the court has gratefully adopted since many of the basic facts in this litigation were not in dispute.

 

For completeness, I should also record that the following witnesses gave evidence during the course of the proof:-

 

 

Pursuers' Witnesses (in order of testimony)

Charles Price - Executive Head Chef, Carlton Hotel, as at 25 February 1996

Alexander Paterson - Kitchen Porter, Carlton Hotel, as at 25 February 1996

Stephen Brooker - Fire Safety Consultant and Engineer

Steven Franks - Kitchen Porter, Carlton Hotel, as at 25 February 1996

Kevin Gilluley - Chef, Carlton Hotel, as at 25 February 1996

Richard Brown - Assistant Night Manager, Carlton Hotel, as at 25 February 1996

Dr David Elliott - Consultant Metallurgist

Findlay Tindall - Engineer, Instrumentation Department of BaeSima

Dr James Lygate - Fire Investigator, IFIC

 

Defenders' Witnesses (in order of testimony)

Alexander Ronaldson (interposed prior to commencement of Dr Lygate's evidence) - Service Engineer, Scobie & McIntosh, as at 20 February 1996

Dr Ian Wadsworth (interposed after Dr Lygate's evidence-in-chief) - Metallurgist, Burgoyne & Partners

Stephen Brooker (recalled)

Daniel Pointon - Fire Investigator, Burgoyne & Partners

 

Pursuers' Submissions

Together with his proposed findings-in-fact, counsel for the pursuers tendered written submissions.

 

At the outset of his oral submissions, counsel invited the court to sustain the pursuers' second plea-in-law and to allow a proof before answer in relation to quantum. The pursuers were not insistent upon their first plea-in-law and counsel also departed from their third plea which was directed towards negligence on the part of the defenders.

It was submitted that paragraph 27 in the joint minute, No 11 of process, embraced the focus of the case, although 2 central issues could be clearly identified:

1. What was the cause of the fire? In this regard, counsel accepted that the pursuers could only succeed where both the user and safety thermostats had failed prior to the occurrence of the fire.

2. If the court were to find that the failure of both thermostats caused the fire, the pertinent question was whether the safety thermostat was operational at the time of the defenders' maintenance visit on 20 February 1996?

 

Before turning to these issues, counsel, in anticipation of his opponent's line of argument, set out his position regarding the application of the best evidence rule having regard to the absence of the Falcon deep fat fryer. Put shortly, he argued, under reference to the cases of MacIver v MacKenzie 1942 JC 51 and Stirling Aquatic Technology Ltd v Farmocean AB (No 2) 1996 SLT 456, together with Dickson on Evidence, that the proper application of the rule had no relevance as far as the present circumstances were concerned. Counsel maintained that the Stirling Aquatic case fell to be distinguished and that, at best, the defenders could only invite the court to scrutinise the evidence with particular care.

 

(In the event, when Mr Hennessy came to address the court, he accepted the nature and effect of Lord Johnston's observations in the Stirling Aquatic case. As a matter of fact, the deep fat fryer was no longer available when the action was commenced and, therefore, could not have been produced. Accordingly, I have adopted Lord Johnston's approach; the pursuers' case has been viewed "with considerably more care as to its quality than might otherwise" have been necessary had the fryer been produced or preserved for production. However, given the detail of the technical evidence in this case, taken along with the inferences which the court has been invited to draw from it, careful scrutiny of the case advanced by the party with whom the onus lies, viz. the pursuers, is, in my view, axiomatic.)

 

In relation to the credibility and reliability of those witnesses speaking to fact, counsel submitted that all were attempting to tell the truth. There were no difficulties regarding credibility but there were issues as to the reliability of certain testimony. It was suggested that the court might have doubts as to the reliability of the evidence given by the kitchen porters, namely Stephen Franks and, to a lesser extent, Alexander Paterson. Counsel argued that their evidence was of assistance in so far as it coincided with the evidence of other witnesses, especially Kevin Gilluley. In addition, there were no real concerns regarding the evidence of Richard Brown.

 

The court's approach towards the expert evidence was, naturally, a matter of some importance. As regards the central issues, namely, the cause of the fire and the timing of the thermostat failures, the evidence given by Dr Lygate and Mr Pointon, respectively, was crucial to each side. Counsel observed that Dr Lygate's evidence was supported by Mr Brooker in all its essentials. He submitted that the court should give preference to Dr Lygate's testimony. He had been confident and consistent. He was also fair, conceding points where appropriate.

 

In contrast, counsel characterised Mr Pointon as evasive and somewhat partisan. In support of that contention, counsel highlighted various factors:

 

(a) When dealing with the differences in the state of the stuffing box nuts, Mr Pointon described Dr Lygate's position as ludicrous;

(b) Initially, Mr Pointon asserted that the boil-over marks seen in the photographs were just an incidence of normal use;

(c) In cross-examination, he altered his position and accepted that the boil-over marks were caused by the fire;

(d) Mr Pointon seemed to find it difficult to answer straightforward questions. By way of example, counsel referred to an exchange during cross-examination in which Mr Pointon seemed to provide an unduly long answer to a prima facie straightforward question.

(e) Initially, Mr Pointon had accepted that there was no evidence pointing to a large leak of oil on the floor beside the deep fat fryer. However, that acceptance had been departed from and his position had altered to embrace the possibility that 15 litres of oil could have leaked out and that, if the floor was sloping, the oil could have run off into a drain. Counsel characterised this as an outlandish proposition.

(f) There was also an assertion by Mr Pointon that a small amount of oil could, when burning, have caused the extent of the damage seen on the premises. Once again, counsel described this as fanciful.

(g) Mr Pointon refused to accept Dr Lygate's theory but his rebuttal depended upon proof of one of 3 things, namely,

 

(1) A significant fire at the base of the fryer providing an alternative heat source; or

(2) Insufficient oil having been placed in the pan of the fryer; or

(3) Sufficient oil having been poured in, there was, nevertheless, a massive leak thereafter.

 

Counsel maintained that not only was there no evidence to support any of these scenarios but that, in reality, the evidence was directly contradictory of all 3.

 

It was submitted that Mr Pointon's adherence to his position in the face of an abundance of contrary evidence should be weighed in the balance by the court when it came to look at the expert evidence overall.

 

Under reference to his written submissions, counsel contended that the evidence admitted of 4 possibilities as far as the cause of the fire was concerned. These were as follows:

(1) Both the user and safety thermostats failed before the fire, leading to uncontrolled heating of the oil in the fryer until it ignited.

(2) An alternative, uncontrolled heat source heated the oil in the fryer until it ignited despite the thermostats therein having operated. The only possible alternative heat source was the flame at the drain valve.

(3) The fryer was underfilled.

(4) The fryer was filled correctly but suffered a massive leak.

 

With regard to the question of whether the fryer had been filled correctly counsel noted that Mr Hennessy had failed to cross-examine certain of the factual witnesses. Reference was made to the cases of McKenzie v McKenzie 1943 SC 108, Dollar Air Services v Highland Council 1997 GWD 28-1435 and Flaherty v National Greyhound RC [2005] EWCA Civ 1117. Mr Franks had stated in evidence that the pan had been filled and the testimony of Messrs Paterson and Gilluley confirmed that. On behalf of the defenders, it had not been put to any of these witnesses that they were mistaken or lying about this particular fact. Accordingly, counsel submitted that, whatever else, the court should hold, as a matter of fact, that there was sufficient oil in the fryer prior to the fire. The court was reminded as to the depth of the "well" of the fryer under reference to page 42 of the book of photographs, No 5/23 of process. Counsel contended that the pre-fire existence of a fryer full of oil was a far more realistic scenario than that apparently advanced by Mr Pointon. In addition, it was submitted on behalf of the pursuers that any established leak at the drain valve was consistent with the fryer being full of oil. Had the latter scenario not been the case then the leak would not have caught fire.

 

The prospect of a substantial leak of oil from the pan itself was, counsel submitted, advanced by Mr Pointon towards the end of his evidence. Counsel invited the court to reconsider photographs 4 and 5 from No 6/1 of process being Mr Pointon's report dated 20 January 2003. These photographs, counsel suggested, had been taken following the fire but prior to Mr Brooker's inspection. This was confirmed at paragraph 26 of the joint minute. These photographs appeared to show the hotel kitchen at a stage before it was cleaned. That being so, the floor tiles were, counsel argued, demonstrably free of any signs of a large oil leak or spillage. He reminded the court that the leak would have required to extend to some 15 litres.

 

Returning to the photographs constituting No 5/23 of process, counsel also maintained that the views contained in the photographs at pages 2 and 8 respectively demonstrated clean areas of metal within the deep fat fryer cabinet and also, externally, at and around the base of the fryer.

 

On counsel's analysis, the user thermostat failed immediately before the fire. Had that not been the case the fire would not have occurred. Counsel took the court through his written submissions at pages 12 to 14 thereof. On the hypothesis that both thermostats had failed prior to the fire, the sole remaining question was when the failure of the safety thermostat had occurred. It was the submission of the pursuers that, on the balance of probabilities, the safety phial had been removed "long before the fire" and, in any event, prior to the maintenance inspection undertaken on 20 February 1996. Counsel justified that conclusion under reference to the 7 numbered paragraphs at pages 13 and 14 in his written submissions. It was on that basis, he submitted, that the court should find in favour of the pursuers.

 

Defenders' Submissions

Mr Hennessy commenced his reply by making certain general observations. The action had been raised in January 2001 and, as far as the defenders were concerned, this had been the first intimation of any claim regarding the fire and its consequences. It had taken the form of an ordinary action but was remitted to the commercial role on 4 May 2001. At an early stage in proceedings it had been necessary for the pursuers to be ordained to produce the 2 thermostats referred to in the evidence. Moreover, the pursuers had been ordained to lodge their expert report in October 2003. Accordingly, Mr Hennessy submitted that the defenders came to this case at a disadvantage in terms of the amount of time and opportunity afforded to them to carry out necessary enquiries. All that being so, it was important to have regard to the history and chronology of events pre-litigation and post-litigation when considering the evidence in the case. In contrast with the pursuers' experts, the experts instructed on behalf of the defenders had become involved some considerable time after the event.

 

Mr Hennessy then advanced certain submissions regarding the proper approach to the "best evidence rule". He suggested that the court required to consider why the deep fat fryer was not available as a production and to consider whether its absence had resulted in prejudice to the defenders. These features required to be weighed "in the balance" when consideration was being given to the quality of the evidence led in the case.

 

It was accepted that the defenders had attended at the hotel premises after the fire but not at a stage in time when any issue had arisen as to whether the deep fat fryer or the thermostats within had been defective.

 

Reference was made to Dr Lygate's evidence at pages 634-635 in the shorthand notes. That passage of evidence related to the disposal of the deep fat fryer. It had been put to Dr Lygate that, "...it would be prudent to have the whole fryer because there might be features of the fire damage to the whole fryer that you would want to have a look at?", and Dr Lygate had agreed with that proposition.

 

Dr Lygate had indicated that the thermostats had been sent to BAeSima for testing. Then, in March 1996, Dr Lygate sought to examine the fryer itself. He contacted the pursuers and was told that the fryer had been disposed of by them.

 

Mr Hennessy commented that Dr Lygate was obviously looking for the fryer itself as it would have been so much easier to express an opinion as to the circumstances giving rise to the fire.

 

The case of Scottish & Universal Newspapers Ltd v Gherson 1986 SLT 408 was cited by Mr Hennessy and he reiterated that the court should scrutinise the reason for the non-availability of the deep fat fryer.

 

(As indicated above, I am satisfied that the features referred to by Mr Hennessy in this chapter of his submissions all fall to be taken into account in the context of a close examination of the evidence placed before the court in support of the pursuers' case.)

 

Of the factual witnesses called to give evidence, Mr Hennessy pointed out that Alexander Paterson, the kitchen porter, was first asked about the circumstances of the fire during the course of the week preceding the commencement of the proof. In such circumstances, it might then be appropriate to take greater account of Mr Brooker's notes following upon his conversations with certain of the witnesses after the fire and Mr Hennessy observed that reference to these notes was no longer a matter of objection as far as the pursuers were concerned.

 

The passage of time was, submitted Mr Hennessy, a very significant factor in this case. The pursuers had chosen to raise the action very shortly prior to the expiry of the limitation period and, in the case of Mr Ronaldson, should his recall of events (understandably) be less than satisfactory that was a feature which, as Mr Hennessy put it, ought to "rebound" on the pursuers. It should not be a feature which would reflect badly upon the defenders.

 

With regard to the expert evidence, the input provided by the 2 metallurgists, Messrs Wadsworth and Elliott made it clear that there had been a particular mechanism of failure so far as the safety thermostat was concerned and a separate mechanism of failure in respect of the user thermostat. However, Mr Hennessy stressed that any views expressed by either of these witnesses as regards the timing of the failures were not based upon the science of metallurgy.

 

Turning to Dr Lygate, it was submitted that he had been selective in relation to what he considered to be the relevant background facts and circumstances. For example, even where there was information available regarding the timing of the appearance of smoke, Dr Lygate proceeded upon the sequence of events which he considered to fit. Mr Hennessy referred to an extract from the case of Margaret McTear v Imperial Tobacco Ltd (unreported - 31 May 2005) which, he suggested, provided helpful guidance to any court charged with giving consideration to the evidence of expert witnesses. Put shortly, it was Mr Hennessy's contention that this court should treat the evidence of Dr Lygate with some reservation.

 

Mr Pointon had become involved in enquiries related to the fire some time after the event. He had been charged with looking at all and any theories put forward without the benefit of the fryer itself. He had been called upon to consider whether the approach taken on behalf of the pursuers held together scientifically. For instance, he required to give consideration to the existence of the flame underneath the fryer. This was an unexplained feature which in the opinion of Mr Pointon required explanation.

 

There was also the question of a leak or potential leak in the pan of the fryer. Reference was made to Mr Booker's note and it was apparent therefrom that the possibility of a leak was a live issue for Mr Brooker at that time. After all, he was the first person on the scene with the ability to apply a scientific mind to the circumstances as they presented themselves to him.

 

Turning to counsel's observations regarding the failure to cross-examine certain witnesses, Mr Hennessy made reference to the cases of Walker v McGruther 1982 SLT 345, Bryce v British Railways Board 1996 SLT 1378 and Currie v Clamp's Executor 2002 SLT 196.

 

He submitted that there was no requirement to cross-examine a witness when that witness gave evidence which did not inherently create a difficulty for the party represented by the cross-examiner. Additionally, Mr Hennessy maintained that fairness only became a live issue in circumstances where the cross-examiner intended to lead evidence contrary to that given by the witness.

 

In relation to the issue of whether the fryer had been filled with oil at the material time, reference was made to the evidence of Alexander Paterson. He had, in fact, been asked in cross-examination about the circumstances in which new oil would have been put in the fryer in the early hours of 25 February 1996. It had been put to him that he was unable to say whether he himself had filled the fryer and he had accepted that proposition. Additionally, Stephen Franks' position, in evidence-in-chief, was that he had not been present when (if at all) the fryer had been filled back up.

Therefore, standing the nature of this testimony, the pursuers' criticism anent a perceived failure on the part of the defenders to cross-examine was ill-founded. In any event, Mr Hennessy observed that the witness Alexander Ronaldson had not been cross-examined by counsel for the pursuers in relation to the question of his visual inspection of the fryer.

 

In addressing what he characterised as the "critical questions" in the case, Mr Hennessy utilised the list of issues he had prepared in advance.

 

The defenders were not in a position to lead contrary evidence of fact on the question of whether the fryer had been properly filled with oil before the fire took effect.

 

As to the issue of when the fryer had been lit, the court was invited to compare the information available within the statements obtained by Mr Brooker with the actual testimony in court. Mr Hennessy submitted that various matters of fact did not coincide as between these 2 broad sources of evidence. Furthermore, he reminded the court that there was now no issue regarding the competency of these statements being put in evidence. The typewritten transcript of the notes taken by Mr Brooker (No 5/24 of process) represented what was apparently said by the relevant individuals within one week of the fire. Mr Brooker had merely recorded what he had been told by these people. The discussion with Kevin Gilluley was particularly illuminating. Had smoke been first observed "about 5 minutes" after the fryer had been turned on then that sort of timing squared more easily with the notion that there was insufficient oil within the fryer. It also appeared to conflict with Dr Lygate's analysis as to timing based upon the hypothesis that the fryer had been adequately filled with oil but, equally, seemed to coincide with the 6 to 6¹/₂ minutes "flashpoint" achieved where the oil in the pan was inadequate.

 

There were also discrepancies in the evidence as to when the fryer had been switched off. Had it been switched off quickly Mr Hennessy queried how that could account for the continuation of the fire. He also queried whether, on the evidence, there had been a leak in the fryer or whether, to put it another way, the court could be satisfied that there had been no leak present? The absence of the fryer itself meant that this feature in the case could not be tested on the defenders' behalf and, for whatever reason, no test to establish or rule out a leak had been undertaken by the pursuers, it seemed, prior to the disposal of the item. It was, nevertheless, a live issue for Mr Brooker when he made his initial investigations.

 

What had caused the fire underneath the pan was also something which the evidence had failed to resolve. It seemed that Mr Pointon was unsure about this and Mr Hennessy submitted that it led one to query whether some other untoward incendiary mechanism was present at the time of the fire.

The evidence as to what had happened to the fryer in the aftermath of the blaze was, submitted Mr Hennessy, a matter of real concern. When seen by Mr Brooker, the fryer had been taken out of the kitchen and emptied. Thereafter, loss adjusters had arranged for it to be returned to the kitchen. In essence, there was, maintained Mr Hennessy, no evidence as to what had or had not been done with the fryer. The first person to inspect it for any signs as to what might have been relevant in the investigation of the fire was Mr Brooker on 29 February 1996. Put shortly, Mr Hennessy argued that the lack of evidence surrounding the fryer's whereabouts and condition between the time of the fire and Mr Brooker's visit constituted a significant lacuna in the pursuers' case.

 

Before considering whether the safety thermostat was defective or otherwise on the day of the fire, the court required to reflect upon whether the user thermostat was functioning. The metallurgical evidence indicated that there had been a fatigue failure due to repeated alternate bending. However, that body of evidence, in itself, was silent as to whether the failure had occurred before or after the fire. Mr Hennessy queried the circumstances in which bending might have occurred in situ. One could only point to when the failure of the user thermostat occurred by inference under reference to when the fire occurred. Mr Hennessy posed the question, "Did the user thermostat fail prior to the fire?" If the pan had been filled with oil to the extent that it covered the thermostat phial then the user thermostat must have failed. However, it was submitted that the most telling theory regarding the user thermostat was how it could have failed in the way that it did? Once again, that was a question which the evidence failed to answer.

 

As far as the safety thermostat was concerned, it appeared that somebody had pulled it out of position using a tool, probably with some degree of force. The metallurgical evidence, once again, could not tell the court when this removal had occurred. The pursuers were then forced back upon a statistical/logical approach which Mr Hennessy submitted was incorrect. Dr Lygate had expressed the view that the safety thermostat had failed sometime prior to the maintenance visit on 20 February 1996. That view was based upon the deposits on the stuffing box nuts, the improbability of concurrent failure and the non-efficacy of what Mr Ronaldson, the defenders' engineer, had claimed to have done during the course of the maintenance inspection.

 

Mr Hennessy proceeded to analyse counsel for the pursuers' timing argument as set out at pages 13-14 of counsel's written submissions. He dealt with the numbered paragraphs as follows:

 

(1) Esto the test carried out by Mr Ronaldson had been insufficient to demonstrate that the safety thermostat was in working order, it did not thereby follow that the safety thermostat phial was missing at that time. In any event, Mr Hennessy submitted that, on the evidence, Mr Ronaldson had explained that in the course of a visual inspection (...you would have to move the baskets to see the probes and the phials). When cross-examined Mr Ronaldson was adamant that checks on deep fat fryers were done as a matter of course and, accordingly, his evidence amounted to what would have been done by him at the material time. If the safety thermostat was missing then the fryer would have been deemed to be unsafe and he would have turned it off. He was adamant that he "would have noticed" if it wasn't there. Mr Hennessy observed that it was never put to Mr Ronaldson that the fish basket etc would have impeded his view of, for instance, the thermostat phials. In re-examination, it was apparent, submitted Mr Hennessy, that Mr Ronaldson was au fait with the operational effect of each thermostat.

 

(2) Similarly, the fact there had been "no sign that the safety was not working" could not and did not give rise to the inference that the safety thermostat phial was missing at any point in time. This feature was entirely neutral.

 

(3) It was wholly wrong to rely upon criticism of Mr Ronaldson's evidence in this way. It was entirely understandable that some 8 years after the event, he was unable to recall in detail exactly what he did on the day in question. Mr Hennessy reiterated that these criticisms were incapable of yielding the inference that the safety thermostat phial was missing at the time of Mr Ronaldson's maintenance visit.

 

(4) The proposition that there was no evidence to show that the safety thermostat was working at the time of the defenders' inspection failed to advance the pursuers' cause to any extent.

 

(5) The "findings" in relation to the appearance of the safety thermostat stuffing box nut were, submitted Mr Hennessy, being presented as "science" but, in reality nothing could be further from the truth. He argued that the evidence relating to the allegedly contrasting appearances of the safety nut and the user nut was inconsequential as was the so called "knife test" carried out by Dr Lygate. Indeed, in no sense could the court rely upon what was being characterised as the outcome of that test. As Mr Hennessy put it, the "components" of the test were unknown and it was a matter of some significance that Dr Lygate's report made absolutely no mention of this test having been carried out.

 

Aside from all else, it was unknown as to how long the safety thermostat stuffing box nut or, indeed, the user nut, had been in situ prior to their removal from the deep fat fryer. That lack of information rendered null any purported comparisons between the two along the lines of Dr Lygate's evidence.

 

The court was being asked to determine an important issue on the basis that one small nut was darker than the other. That is what it came down to in the final analysis submitted Mr Hennessy. In any event, he questioned the nature of the deposit said to have been found on the safety nut. It appeared that no-one had taken the trouble to remove the deposited material to analyse its constituency. For ought known it might consist of grease, oil, food deposits, soot or, indeed, a combination of any of these. There was no doubt that oil from the fryer was, at the very least, capable of reaching the vicinity of both these nuts.

 

(6) Once again, the pursuers' assertions regarding the balance of probability and logic, in so far as they purported to establish that the safety phial had been removed prior to the defenders' maintenance inspection, were ill-founded.

 

(7) The court was being invited to prefer the evidence of Dr Lygate to that of Mr Pointon. However, there was no basis for criticising Mr Pointon simply because he was unable to provide an explanation for the different appearance of the 2 stuffing box nuts. As Mr Hennessy had already submitted, the inference to be drawn from the respective appearances of these nuts could not be relied upon in any event.

 

In summary, Mr Hennessy contended that Dr Lygate had adopted a position whereby he was prepared to assert that the safety thermostat phial was missing from the deep fat fryer on 20 February 1996. In other words, Dr Lygate was working back from the appearance of one of the 2 nuts. There was, submitted Mr Hennessy, no other objective evidence to the effect that the safety phial was missing on the date in question. The court was being called upon to draw an inference from the condition of one stuffing box nut, that inference being to the effect that the safety phial had been absent for a period significantly longer than 5 days or thereby. That was an inference which could not be justified and to arrive at such would be unsafe in the particular circumstances of this case. Therefore, Mr Hennessy invited the court to sustain the second and third pleas‑in‑law for the defenders and to repel the defenders' fourth plea-in-law along with the third plea for the pursuers.

 

Decision

 

[1] After 7 days of evidence which often embraced information of an extremely technical nature, followed by a day of submissions, it is, perhaps, ironic that the merits of the pursuers' case were dependant upon what counsel for the pursuers described in his written submission as the "sole remaining question", viz. when the safety thermostat failed.

 

[2] Of course, the significance to be attached to that question is informed by the prior hypothesis that the cause of the fire was the failure of both the user and safety thermostats prior to the occurrence of the fire. I shall return to the issue of whether that hypothesis has been established on the evidence, at a later stage.

 

[3] However, placing reliance upon the foregoing hypothesis, it is incumbent upon the pursuers to satisfy the court that the failure of the safety thermostat had occurred prior to the defenders' maintenance visit on 20 February 1996. On this crucial point, counsel founded upon the absence of the safety phial and, for various reasons, submitted that, on the balance of probabilities, it had been missing for a period of time greater than the 5 days between the inspection and the fire.

 

[4] In his reply, Mr Hennessy, for the defenders, addressed each of the contentions contained within the paragraphs numbered 1 to 7 at pages 13 and 14 of counsel's written submission. In my opinion, Mr Hennessy's analysis was correct.

 

[5] At this remove in time, and in the absence of the best evidence, namely the fryer itself, I am not prepared to hold that there was anything materially ineffective about the way in which the defenders' engineer, Mr Ronaldson, approached his task during the inspection on 20 February aforesaid. Mr Ronaldson found himself giving evidence about a routine inspection, almost 9 years after the event. It is unsurprising that his testimony may have been less than comprehensive, but I have reached the conclusion that there was nothing demonstrably untoward about what Mr Ronaldson did or did not do in relation to the fryer. As with all of the other witnesses called to give evidence in this case, I formed the impression that Mr Ronaldson was doing his best to give a truthful account and that, making due allowance for the significant passage of time, his evidence was essentially reliable. I am satisfied that had the safety phial been missing at the time of the inspection, Mr Ronaldson would have noticed it. In any event, I agree with Mr Hennessy's observation to the effect that even if the test carried out by Mr Ronaldson had been insufficient to demonstrate that the safety thermostat was in working order, it does not thereby follow that the phial was missing at that time.

 

[6] Equally, the absence of a "sign that the safety was not working" is, indeed, entirely neutral and does not advance the pursuers' "balance of probabilities" argument.

 

[7] As stated supra I find the pursuers' criticism of Mr Ronaldson's evidence to be unwarranted. I also agree that, in any event, were the criticisms to be well‑founded, they do not necessarily give rise to the inference that the safety thermostat phial was missing at the time of Mr Ronaldson's maintenance visit.

 

[8] For the pursuers to rely upon the contention that there was no evidence to show that the safety thermostat was working at the time of inspection, is, in my judgement, fallacious. The onus lay with them to establish that it was not working.

 

[9] As characterised on behalf of the pursuers, the "findings" in relation to the appearance of the safety thermostat stuffing box nut were of significant evidential value. In this regard, the pursuers relied heavily upon the evidence of their expert witness, Dr Lygate and, in contrast, counsel criticised the approach taken by Mr Pointon. Proposed finding-in-fact (74) (for the pursuers) was in the following terms:-

 

"The safety thermostat stuffing box nut was found to be stained on its face and to have a residue on its side, neither of which were noted on the user nut. A test carried out by Dr Lygate showed that a significant period of time would be required before such a residue would be laid down."

 

It was suggested that certain inferences could be drawn from the appearance of each stuffing box nut and the test carried out by Dr Lygate.

 

[10] In all the circumstances, I have taken the view that the only reliable inference to be drawn from the appearance of the nuts themselves is that, to an extent, they have a different appearance. Beyond that, the suggested link between their contrasting appearance and any period of time to be attributed to the absence of the safety thermostat phial has no proper evidential basis, is afflicted by an absence of detailed scientific analysis and is, in any event, extremely tenuous.

 

[11] Mr Pointon saw that there was very little evidential significance with regard to the deposits on the two stuffing box nuts. He suggested that the presence of the user phial would not necessarily prevent oil from reaching the face of the nut. Before giving due account to the appearance of "soot" on one stuffing box nut and the relative absence of soot on the other, Mr Pointon required to know what the contaminants on the surface area were. With the evidence as it stood, Mr Pointon observed that, "...really all you can say is they are both a bit black and forensic science isn't magic, it can only do so much and I think here you are expecting the impossible from two things that are black." (Page 931 at lines 14-18).

 

[12] To my mind, there is considerable force in the tenor of Mr Pointon's remarks. There was no evidence in the case as to the nature of the contaminants viewed on the surface of each stuffing box nut. Aside from all else, without knowing what the "soot" consisted of, it is difficult to understand how the analysis put forward by the pursuers could be regarded as scientific in any way.

 

[13] When asked about the nature of the material deposited on the end of the stuffing box nut (safety), Dr Lygate stated that it was "a carbonitious deposit". He knew that "because it looks black and that is what oil degrades down to". (Page 741 at lines 14-20). Moreover, Dr Lygate, whilst accepting that the material was capable of being tested, conceded that no such test had been carried out. (Page 741 at lines 21-25). He also conceded that the deposit on the nut could be degraded foodstuffs.

 

[14] Indeed, the pursuers did not rely upon the existence of a black deposit on the safety nut and the absence of a black deposit on the user nut. They relied upon the fact that there appeared to be a greater degree of "black deposit" on the safety nut (page 742 at line 5). Dr Lygate testified that:-

 

"It is about quantity and it is the quantity that gives rise to a hypothesis that that could be indicative of the safety thermostat stuffing box nut being exposed for a longer period of time and in a different way to the user thermostat." (Page 742 at lines 6-12).

 

Of course, on Mr Pointon's evidence, the theory advanced on behalf of the pursuers, ignored the fact that even where both phials were in situ, the respective stuffing box nuts were already in different environments. The safety and user thermostats were different devices. In relation to that, it was beyond dispute that the safety phial was materially shorter than the user phial.

 

[15] Careful attention requires to be paid to the language used by Dr Lygate. The foregoing passage from his evidence is somewhat qualified in its terms. He merely speaks of a hypothesis "that could be indicative of the safety thermostat stuffing box nut being exposed for a longer period...". Whilst I regarded Dr Lygate as a highly qualified and impressive witness, in his field of expertise, I detected from his evidence a certain lack of conviction as far as the stuffing box nut theory was concerned. That is borne out by a scrutiny of what he actually said under cross-examination.

 

[16] The fragility of the pursuers' theory is further exposed when one looks to a subsequent passage in Dr Lygate's testimony. At pages 742-743, the concept of hot oil reaching the face of each stuffing box nut was being discussed. It is apparent that Dr Lygate favoured the notion that more hot oil would have been against the face of the safety nut, despite the fact that both faces were the same and would at all times have had some oil in front of them. He then explained, in reply to Mr Hennessy, that "...it is easier for oil to circulate in the safety thermostat stuffing box than it is in the user thermostat stuffing box simply by reason I say if it is true that the safety thermostat phial is missing and has been missing for a period of time."

 

[17] In my opinion, therefore, the pursuers' argument is fallacious by reason of its circularity which can be demonstrated thus:-

 

(a) The pursuers maintain that the safety phial was missing prior to the maintenance inspection.

 

Question - Why?

 

Answer - Because a different, more extensive deposit was found on the safety stuffing box nut due to its face being exposed to more hot oil than the user nut.

 

Question - Why?

 

Answer - It's easier for oil to circulate in the safety stuffing box than in the user stuffing box.

 

Question - Why?

 

Answer - Because the safety phial was missing for a period of time.

 

Thus, the pursuers' theory is reliant upon the very hypothesis which it purports to establish and is, accordingly, unsound.

 

[18] It should not be overlooked that Dr Lygate was also prepared to countenance another explanation, namely, that the user thermostat may have been younger than the safety thermostat, with a potentially additional feature regarding when the respective thermostats were actually installed (pages 739-740).

 

[19] The guarded nature of Dr Lygate's evidence regarding the stuffing box nuts can also be recognised in a passage during examination in chief at page 538.

 

"The greater deposit on the safety thermostat stuffing box nut could be because the safety phial has been missing and the face of the nut has been exposed to hot oil for a period of time and has been exposed to more oil than the user thermostat." (Page 538 at lines 9-15).

 

[20] Even if the pursuers' theory were correct, it still begs the question as to what "period of time" Dr Lygate was referring? In answer to the question, "Is there any way of knowing how long that safety phial had been missing?", Dr Lygate explained that he had carried out a test to see how quickly deposits would gather on a surface exposed to hot oil, viz. "the knife test". He had placed a bowl of oil in an oven heated to 220^oC. A stainless steel knife had been placed in the bowl of oil for a week and Dr Lygate "got little or no deposit on that knife". He concluded that the deposit on the safety thermostat nut took much longer to build up. That suggested to Dr Lygate that the safety phial was missing for greater than 4 days.

 

[21] I am not satisfied that the court can place proper reliance upon the knife test conducted by Dr Lygate. To my mind, the test did not accurately replicate conditions in the fryer itself and the approach taken seemed somewhat simplistic. I agree with the tenor of Mr Hennessy's critical observations to the effect that the "components" of the test were, strictly speaking, unidentified and that Dr Lygate's report made no reference to this test being carried out. From a metallurgical viewpoint, there was no evidence to suggest that "a stainless steel knife" represented a true comparator in relation to the metallic constituents of the respective stuffing box nuts. Equally, there was no evidence to suggest or confirm that the oil used by Dr Lygate had the same reactionary qualities as the Frytol oil used at the time of the fire, when subjected to heat. The heat applied in Dr Lygate's test was a constant, week-long 220^oC whereas temperatures in the fryer must have fluctuated regularly.

 

[22] In the whole circumstances, Dr Lygate's test cannot be viewed as being scientific. He, himself, accepted as much (page 746 at line 10-25 and page 748 at lines 18-25). In any event, he seemed to attach limited importance to his theory regarding a "greater deposition rate". Perhaps that is why the knife test did not appear in his report. He expressly rejected the suggestion that this was "an important feature of" his "theory and opinion" (page 747 at lines 2-4). Dr Lygate stated that he placed greater reliance on the notion "that in order to have a fire you need to have both thermostats failed..." (page 747 at lines 5-6).

 

[23] Moreover, it is important to note Dr Lygate's acceptance of the possibility that a darkened safety stuffing box nut might be indicative of there having been a fire where the thermostat was not covered (page 748 at lines 5-8).

 

[24] I also entertain considerable misgivings about the validity of the pursuers' "probability argument" in so far as it bears upon the timing of the "failure" of the safety thermostat. Dr Lygate agreed that the following proposition was "a fair representation" of his evidence:

 

"...it is highly unlikely on the basis of mathematical probabilities,...that both" (thermostats) "would go at the same time".

 

[25] In my opinion, that proposition does not assist the pursuers in this case. Firstly, one is not comparing "like with like". It was beyond dispute that the user ultimately failed by reason of a manufacturing defect. However, the safety thermostat phial was, it seems, pulled out of position, all on the basis of the metallurgical evidence. Accordingly, neither of these two, different features resulted from ordinary "wear and tear".

 

[26] These materially different causes were put to Dr Lygate and he was asked, in cross-examination, whether they impacted upon the issue of "mathematical probabilities". At first, Dr Lygate maintained that it was extremely unlikely that both thermostats "failed at the same time" (page 751 at lines 20-22). However, on being pressed further, it was clear from Dr Lygate's subsequent responses that he soon recognised the difficulty of the position he was adopting. As Mr Hennessy put to Dr Lygate, the likelihood of someone deliberately pulling out the safety thermostat phial whilst the fryer was in normal operational use was remote. With the involvement of such an unlikely feature as that, even the superficial attraction of the pursuers' "probability argument" is reduced. Additionally, it is, in my view, entirely eradicated when one considers that the failure of the user thermostat was, in essence, random. The defect was present from the time of its manufacture. However, on the evidence, it could have manifested itself at almost any point in time.

 

[27] In the particular circumstances of this case, therefore, no great weight falls to be attached to the probabilities of one or other occurrence having taken place within a shorter chronological time-frame. Ultimately, Dr Lygate seemed to accept that. In response to a question by the court, he accepted "...the point that Mr Hennessy is making about somebody having physically interfered with the safety thermostat. It begs the question as to when did that happen, was the safety thermostat there when Mr Ronaldson made his test?" (Page 753 at lines 9-14). Indeed it does beg the question and I regret that the evidence upon which the pursuers purport to rely does not provide a reliable answer.

 

[28] In the final analysis, Dr Lygate, with the stuffing box nut and probability theories both discredited, required to fall back upon what Mr Ronaldson had or had not done in the course of his inspection some 9 years prior to the conclusion of Dr Lygate's cross-examination.

 

[29] On the penultimate page of his written submissions, counsel for the pursuers maintained that the cause of the fire had been "convincingly" shown to be the failure of both user and safety thermostats. At the time of the fire, the user had failed and the safety phial was missing. It will, of course, be seen that the pursuers' case is informed by Mr Brooker's discovery that the safety phial was missing when he examined the fryer after the fire. Counsel submitted that if the safety phial was not there at the time of Mr Brooker's inspection then, unless removed by someone after the fire, it was not there at the time of the fire.

 

[30] Aside from Mr Brooker, (whose evidence was undoubtedly truthful), the evidence of Mr Findlay Tindall of BAeSima confirmed that the thermostat phial connected to the safety thermostat was missing (page 401 at lines 14-18) when he had occasion to examine the thermostat components in April of 1996. Dr Lygate's report, dated 15 June 2001, (No 5/3 of process) and his subsequent testimony in court, not only proceeded upon the basis that the safety phial was missing but also, that "the concurrent failure of the user thermostat and safety thermostat resulted in the uncontrolled heating of the oil in the fryer...". For the purposes of the pursuers, the alleged failure of the safety thermostat is regarded as being synonymous with the absence of its phial. Mr Tindall did not test the remaining safety thermostat components due to the absence of that phial (page 411 at lines 1-10).

 

[31] Consequently, in seeking to determine the cause of the fire, it is imperative that the court consider what, if any, evidence exists in support of the basic factual proposition to the effect that the safety phial was missing prior to the occurrence of the fire. This fact must be established to the court's satisfaction before any of the pursuers' related arguments regarding the timing of the thermostat failures can enter into play. In fact, there was no evidence from which it could be clearly inferred that the safety thermostat phial was missing at or prior to the fire. The only clear evidence was that it had been found to be missing a matter of days afterwards. I do not consider that, certainly in the context of this case, the mere occurrence of the fire can be used as an adminicle of evidence to support a conclusion or conclusions as to the cause of that fire.

 

[32] In my judgment, what the pursuers were obliged to do, and what they have failed to do, is to elicit evidence tending to exclude the possibility that the safety thermostat phial was removed by someone after the fire. In reality, there is no evidence as to what was done with the fryer between the time of the fire and Mr Brooker's inspection. Counsel for the pursuers criticised the suggestion that the safety phial had been "yanked out after the fire", pointing to the extreme force required to remove it. Regarding the nature and extent of the force required, my understanding of the evidence tends to coincide with that of counsel. However, the same practical difficulty would have arisen whether before or after the fire; extreme force would be required. Therefore, the evidence is silent as to the circumstances in which the safety phial was removed from the fryer, whether before or after the fire. In the absence of compelling evidence as to the disappearance of the safety phial, the court cannot be satisfied on the balance of probabilities that the cause of the fire was the concurrent failure of the user and safety thermostats.

 

[33] Moreover, there seems little doubt that the flame seen in the area of the drain valve immediately preceded the appearance of a flame on top of the fryer, above the oil. Whilst it may be correct to say that the combustion in the area of the drain valve has not been established as the direct incendiary mechanism for what might be described as the main fire, I have found that the evidence discloses no satisfactory explanation for the appearance of the flame which Mr Gilluley required to extinguish. The existence of this unexplained feature serves to cast even more doubt upon the precise mechanism of the main fire. Put shortly, I am not satisfied that the pursuers have excluded the potential significance of the fire at the base of the fryer.

 

[34] Returning to the themes which introduced the defenders' submissions, the unavailability of the original fire damaged fryer has undoubtedly impacted upon the quality of the available evidence, particularly having regard to the passage of time. What evidence is available, therefore, requires to be scrutinised carefully and, that having been done, I conclude that the pursuers have failed to establish the cause of the fire. Even if I am wrong about that, for the various reasons set out above, it is my opinion that they have failed to prove when any failure of the safety thermostat occurred.

 

[35] All that being so, I have assoilzied the defenders. They are also entitled to the expenses of the action.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SHCALS.JH.