Owners of pub destroyed by fire win damages action against electricity company

The Court of Session held that the electricity company were in breach of their duty of care by not cutting the power supply to the tenement following a water leak.

Lord Boyd of Duncansby heard that 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, which caused considerable damage to the building and required it to be demolished.

A few days earlier in the afternoon of Thursday 6 October 2005 a man was arrested after entering the unoccupied premises known as Rabbie Burns Tavern on the corner of Waterloo Street and Wellington Street, climbing the stairs to the first floor and removing a sink from behind the bar.

The removal of the sink caused water to flood down into premises known as Archie’s Bar, which was situated on the ground floor and basement of the tenement.

The proprietors of Archie’s Bar, Red Star Pub Company, the first of the 11 pursuers who included the tenant of Archie’s and proprietors of individual properties within the tenement, raised an action against the defenders, Scottish Power, which supplied electricity to the building.

The pursuers alleged that the fire was an electrical fault, which 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 claimed that in exercise of their duty of care the defenders ought to have cut the cable supplying electricity to the tenement when they inspected the building the day after the flood.

It was submitted that there was a “material risk” of an electrical fire when the defenders departed the tenement leaving it partially energized, and that they ought to have been aware of that risk and to have cut the supply.

If they had done they say that the fire would not have occurred, it was argued.

The defenders accepted that they owed a duty of care but denied any liability.

However, the judge said he had “little difficulty” in concluding that the fire was an electrical fire and that there was no intruder or any other agency responsible.

The pursuers maintained that this was a sufficient starting point for their case but the primary position was that the fire started in the cable head, or at the very least the defenders’ equipment, but that was disputed by the defenders.

The defenders argued that the pursuer’s inability to identify a precise fault was “fatal” to their claim, but the judge noted that three expert witnesses agreed that there were two areas of very significant damage consistent with being the seats of fire, the south west corner and the beer cellar.

“There was an ignition source in the south west corner and there was evidence of damage which could lead to ignition…In my opinion it supports the pursuer’s primary position that the source of the fire was in the defenders’ equipment…Given the total devastation of the cable head I conclude that it most likely occurred within the cable head itself,” Lord Boyd said.

He continued: “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.”

The pursuers argued that the defenders had a “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’ position was that their duty of care did not extend to the specific duty of cutting the cable, and that 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”, but the judge disagreed.

In a written opinion, Lord Boyd said: “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.

“he defenders knew of the fault and that as a first step they required to replace the cable head…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.”

“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.”