The explosion occurred because of a gas leak, due to a fracture in the gas booster’s casing. The gas booster had been installed into the boiler room 15 years previously, its function was to boost the pressure of gas from the mains into the boilers. This type of booster had been manufactured successfully since the mid 1970’s and had enjoyed many years of relatively trouble free operation. There were a small number of failures in the 1990’s where the booster’s casing had fractured in operation. The underlying reasons for these failures had not been established conclusively prior to this incident at the BHS store, however poor maintenance of the boosters was thought to be a common theme. Certain modifications had been made to the design of the booster over the course of time including adding a strengthening rib around the casing.
Allegations
CPP argued that from August 1998 Nu-Way knew that there was a problem with unmodified booster casings. The problem had been identified by staff members of Nu-Way after an incident at the Nynex arena in Manchester involving a failed gas booster. Following the incident Nu-Way held a meeting in July 1998 to decide on their response. CPP thought that Nu-Way’s response was inadequate in that it failed to address the problem of old boosters that were not reinforced out in the field, and that a warning should have been sent out advising of the potential dangers of such boosters. If the warnings had gone out, CPP contended that BHS would have acted upon those warnings by checking their boosters and replaced their casings.
Defence
Nu-Way did not know the underlying cause of the incident at Nynex Arena but were justified in their view that defective maintenance and/or damage in transit was involved. Following the meeting in 1998, the steps taken by Nu-Way to modify the design of the booster and to issue various Product Information Notes, giving further information about maintenance, were appropriate and reasonable.
In any event, the maintenance regime in the BHS boiler house was wholly inadequate. This was relevant for two reasons:
- If Nu-Way had given the advice that CPP alleged should have been given to BHS it is likely that the advice would have been ignored and the explosion would not have been avoided.
- The incompetence of the BHS maintenance regime was such as to have broken the chain of causation.
Decision
The Judge reviewed the current state of the law on the duty to warn of dangers appearing after manufacture. He referred to a passage in Clerk & Lindsell on tort which stated that if a clear indication of a serious danger is received the manufacturer may be under a duty to take reasonable steps to bring it to the attention of those likely to be affected. He also bore in mind that the Claimant still has to prove causation i.e. that had there been a warning, it would have been heeded and hence the loss would not have been suffered. Clerk & Lindsell also said that this was likely to be a heavy burden, which would make it difficult for many Claimants to succeed on a failure to warn basis. The Judge made clear that observations about warnings being disregarded were made in relation to the particular facts of smoking cases and he did not assume, in this case, that CPP faced a heavy burden, only the usual burden of proving a case.
The Judge did conclude that Nu-Way was under a duty to give a warning in August 1998 which specifically addressed the risk to the fan casing. He did not think that it was necessary to specifically draw attention to the risk of catastrophic failure since this might have induced undue alarm for end users.
On the issue of whether the loss would have been avoided if Nu-Way had issued the warning, the Judge took into account the lack of evidence that had been adduced relating to the maintenance of the boosters. There was evidence about highly unsatisfactory, inexplicable and unrecorded modifications of another booster at the premises and the unexplained running of the incident booster at midnight in August when the booster was only supposed to run between October and March. The Judge found that BHS left both the need for and the frequency of maintenance to its contractors and that its supervision of the maintenance regime was poor. He found that such evidence as provided suggested a very low general standard of inspection and maintenance of the boosters by the maintenance contractors. In all those circumstances the Judge was not satisfied that if the warning had been given, in the terms which he found it should have been given (or even in the broader terms advanced by the Claimant), that it would have been heeded and the loss would have been avoided. Accordingly he ruled in favour of Nu-Way.
Comment
The Court looks to strike a balance between imposing unfair and onerous duties upon a manufacturer and the legitimate rights and expectations of the end users of products. As was recognised long ago in Donoghue v Stevenson [1932] once a product leaves the manufacturer they have no control over the use that product is put to and generally their responsibility for that product ends. Whilst the law of tort has undergone continuous development, the law is still reluctant to place too heavy a burden on manufacturers in circumstances where a long period of time has elapsed since the product has gone into use. One of the tools available to the Court in order to determine who bears the responsibility for such losses is that of causation. Here, on the evidence, the Judge found that the booster, which had failed, had been poorly maintained. It was likely that this state of affairs had been continuing for some time. Given the poor maintenance regime the Judge was reluctant to find that even if a warning had been given it was likely to have been heeded. The Judge is to be commended for taking such a robust approach to these issues. To have found otherwise would, in this case at least, have meant that the manufacturer was effectively underwriting the poor maintenance practices of those responsible for the booster’s operation.