Fire Damage Claims
United Marine Aggregates Limited -v- G M Welding & Engineering
On 2nd April 2012 Edwards-Stuart J handed down his decision in United Marine Aggregates Limited -v- G M Welding & Engineering Limited [2012] EWHC 779 (TCC).
The Defendant welding company was undertaking hotworks at the Claimant's premises when a fire started causing in excess of £4m worth of damage. The Court, whilst satisfied that UMA and the insurers had proved that the fire was probably caused by spatter from oxy-propane cutting igniting either the lining or the mastic in the underpan, held the Defendant was not liable for the damage.
Subrogated claim by the plant owner's insurer against the welders
Edwards-Stuart J found it was not 'reasonably foreseeable' that the fire might smoulder undetected within the lining of the underpan for a period of in excess of 1¼ hours.
The Claimant relied (amongst other things) on the doctrine of res ipsa loquitur. More particularly, it asserted that the fire was caused by the ignition of the lining or sealant of the underpan of the A side primary screen by particles of molten metal from the burning operations. Whilst satisfied that UMA and the insurers proved that the fire was probably caused by spatter from oxy-propane cutting igniting either the lining or the mastic in the underpan below the A side primary screen and agreeing there was some force in the Claimant's submission that this was a case of res ipsa loquitur (so that the onus was on the Defendants to show that the fire occurred without fault on their part), the Court decided the position was not clear cut.
Claim by the Defendant against its insurers, Novae Syndicates
Whilst the insurer failed with (or withdrew) two of its allegations of breach, the Court considered the position on one requirement to be clear. This particular part of the warranty required combustible material which cannot be moved to be "covered and protected" by non-combustible material.
The two requirements - covered and protected were found to be cumulative. The Court did not rule out water used by the Defendant welders to?? protect the area as a 'non-combustible material', but went on to say that it was evident that the strip of mastic at the top of the side of the underpan was not covered by the water at all times because a hot molten article got through. Accordingly, there was a breach of the warranty and the Defendants' claim for an indemnity failed.
The Burning and Welding Warranty
It is a condition precedent to liability that in respect of the use of … oxy acetylene or similar welding or cutting equipment …the following precautions will be complied with at every occasion:
The area in the immediate vicinity of the work shall be cleared of all movable combustible material. The combustible materials which cannot be moved and (sic) must be covered and protected by over-lapping sheets or screens of non-combustible material.
It is not disputed that the warranty (extract below) was a condition precedent to liability, as it states, or that it must be exactly complied with. It was also accepted that it is not necessary for the insurers to prove that a breach of warranty caused the loss: it being settled law that a breach by the insured of a warranty such as this d