Negligence — Action against heating engineers — Complaint about inspection of a heating plant — Defendants instructed as a specialist firm to test heating system for plaintiffs about to purchase house — Defendants’ report indicated nothing wrong, but soon after plaintiffs moved in the system began to be unsatisfactory — The Gas Board advised examination by other specialists and in the meantime warned plaintiffs not to operate the system — Subsequently it was condemned and plaintiffs commenced proceedings against defendants — County court judge decided that defendants had followed a standard practice and were not liable — Plaintiffs appealed
were advised by the surveyors who surveyed the house before purchase to obtain
specialist advice as to the state of the gas-fired heating system — The
plaintiffs asked the surveyors to select and instruct a specialist firm and in
due course the defendants were instructed — The defendants’ report stated that
a full working test had been carried out and that the whole unit was operating
satisfactorily — Unfortunately, as mentioned above, this was not so and the
second firm of specialists appointed on the advice of the Gas Board found a
crack in the heat exchanger and further inspection revealed a more serious crack
— Plaintiffs had to install a new unit as the age of the old unit meant that
replacement parts could not be found — Plaintiffs commenced proceedings
alleging negligence on the part of the defendants — The claim was pleaded in
contract and tort — The case was actually presented to and dealt with by the
county court judge in tort, although there clearly was a contract between the
plaintiffs and the defendants — The duty of care, however, was the same on
either basis
were established — Cracks in a heat exchanger were potentially dangerous, were
more likely to occur towards the end of a system’s life, and were then a matter
for condemnation of the unit — The system in this case was about 24 years old,
its expected life was 25 years, but the defendants were found to have
reasonably believed that it was 15 years old — It was a fact that there were
cracks in the heat exchanger at the date of the defendants’ inspection — One of
the cracks could be seen by the use of a torch and a mirror, but the more serious
crack could not be seen without removing the burner
defendants actually did at the inspection was to see that the gas was properly
connected, to fire the unit and run it for forty minutes — They inspected the
flame in the burner of the heat exchanger and saw that this appeared to be
working correctly — They concluded that the heat exchanger was functioning
satisfactorily — They did not carry out an inspection of the heat exchanger by
the torch and mirror method — The plaintiffs’ experts said that there should
always as a matter of course be an inspection by the torch and mirror method —
The defendants’ experts said that the standard practice for a survey, as
distinct from a servicing, of the system would not be to search for cracks in
the heat exchanger unless there was a suspicion that the burners were not
operating correctly or there was evidence of carbon monoxide in the atmosphere
— In evidence, however, the defendants’ expert qualified this statement by
reference to the known age of the unit — At 20 years and even at 15 years
(which defendants believed to be the age) the defendants should have been put
on notice of the possibility of cracks
came to the conclusion that as the defendants were following the recognised
practice for a survey, as they reasonably believed the age of the unit to be
not more than 15 years, and as nothing had occurred during the test to raise
suspicions or put them on inquiry, they should not be held liable for failing
to make a search of the inside of the heat exchanger — The judge accordingly
dismissed the action — The Court of Appeal disagreed — In their view, in the
case of a system which was reaching a suspect age (even taking the age as 15,
although in fact it was 24) it was not sufficient simply to rely on the
standard combustion test — The safety of the occupants of the house could have
been at risk — The plaintiffs were entitled to expect that a full inspection
had been carried out, as the report had undertaken to do — Appeal allowed;
damages for plaintiffs agreed at £1,500, to include costs
No cases are
referred to in this report.
This was an
appeal by the plaintiffs, Mr and Mrs Pfeiffer, from the decision of Judge
Goodman, at Croydon County Court, dismissing their claim for damages against
the defendants, E & E Installations, for breach of contract and/or
negligence in the inspection of the heating system at 63 Woodcrest Road,
Purley.
Michael Harris
(instructed by Percy Holt & Co, of Purley) appeared on behalf of the
appellants; Alexander Hill-Smith (instructed by B K J Lewis) represented the
respondents.
Giving
judgment, STUART-SMITH LJ said: This is an appeal by the plaintiffs from
the judgment of His Honour Judge Goodman, sitting in the Croydon County Court
on January 9 1990, whereby he dismissed their claim for damages against the
defendants for breach of contract and/or negligence in the execution of their
duty as heating engineers when instructed to carry out an inspection of the
heating plant at 63 Woodcrest Road, Purley, which the plaintiffs intended to
purchase.
The plaintiffs
had instructed Pollard Machin, a firm of surveyors, to carry out a survey of
the house before their purchase, but Pollard Machin indicated that so far as
the heating system was concerned they were not in fact competent to give an
opinion about it and advised that a specialist firm should be instructed. The
plaintiffs left it to Pollard Machin to instruct such a specialist firm, and in
due course the defendants were instructed.
Instructions
were given to them on or about November 9 1987, and on November 13 1987 the two
Mr Luckhursts carried out an inspection — Mr Edward Luckhurst being a heating
engineer.
On November 14
the defendants reported to the plaintiffs via Pollard Machin in these terms:
Re: Central
heating report for 63 Woodcrest Road, Purley, Surrey.
A full working
test and inspection of the central heating system was carried out at the above
property on November 13 1987.
The system is
then described, being a gas-fired, warm-air unit. The unit in fact was wrongly
described as a ‘Lennox GH9-52’ whereas in fact it was ‘Lennox GH6-52’.
The report
continues:
The system
was installed around 1972-1973 and we understand from the present owners that
it is covered by a Service Contract with SEGAS.
The controls
are then described and the report continues:
The unit,
controls and closeable grill were all operating satisfactorily at the time of
our test.
There was no
indication in that report that there was anything wrong with the unit.
The plaintiffs
agreed to purchase the house; completion took place and they moved in on
December 18 1987. That was in the middle of a cold snap.
Mr Pfeiffer
turned on the central heating, which appeared to work well at first, but when
it was turned down low the pilot light went out. That happened on a number of
occasions. The Gas Board were called in, and they recommended the services of
another firm of specialist engineers, Nordec Services, and warned that in the
meantime the system should not be operated.
Owing to the
Christmas holidays it was not until December 30 that Mr Mills, an engineer
employed by Nordec Services, inspected the system and found a crack in the heat
exchanger. Mr Mills in fact prepared a report, but was not called as a witness
at the hearing before the judge because he had left the employ of Nordec
Services, but on January 6 1988 Mr Mills showed the crack to the plaintiffs,
and Mr Pfeiffer gave evidence to the effect that he had seen the crack; the
defendants were also shown the crack by Mr Mills. But Mr Edward Luckhurst who
attended at the house on that day said he could not see a crack and thought
that it was merely rust.
Further
inspections were carried out by Mr Garland, who was employed by Nordec
Services, and a Mr Friend, an expert instructed on behalf of the defendants. In
the course of further examination, it transpired that there was not only the
crack on the left-hand side of the unit, described as a hair crack being the
crack Mr Mills discovered, but there was a more serious crack on the right-hand
side of the unit. The system was then condemned; it was common ground that if
there were any cracks it was not satisfactory to be used. No parts could be
replaced because the system was too old. Therefore the plaintiffs had a new
heating unit installed which was in being and working by January 11 1988.
The plaintiffs
then commenced proceedings, it being their case that the defendants should have
discovered and reported upon the crack which was found by Mr Mills. The claim
was pleaded both in contract and in tort, and in my view there was a contract
between the plaintiffs and the defendants effected through the agency of
Pollard Machin, but, for reasons which are not entirely clear, the judge
appears to have dealt with the matter entirely on the basis of a duty in tort —
and indeed that appears to have been the way in which the plaintiffs’ case was
presented to him in the court below.
In my
judgment, it matters not whether the duty arose in contract or in tort; it was
the same duty to carry out a test and inspection and report with reasonable
care and skill of a competent heating engineer and to report carefully and
accurately to the plaintiffs the result of such test inspection.
The plaintiffs
called two expert witnesses, Mr Garland and Mr Avery, who were both employed by
Nordec Services. Their evidence was to the effect that there should have been
an inspection of the heat exchanger by using a torch and a mirror and that if
that had been done the hair-line crack which was discovered by Mr Mills and seen
by those who subsequently inspected it (with the exception of Mr Luckhurst)
would have led to the system being condemned. The defendants did not carry out
such an inspection at the time of their examination. What they in fact did was
to see that the gas was properly connected; they fired the unit and ran it for
some forty minutes. It appeared to be working satisfactorily — that is to say
they inspected the flame of the burner in the heat exchanger which appeared to
be functioning correctly — and they concluded that the heat exchanger was
satisfactory.
In addition to
Mr Edward Luckhurst, the defendants called Mr Friend, a heating engineer. He
said in his evidence that it was not usual practice, when carrying out a
survey, to make a visual inspection of the heat exchanger unless the engineer
was put on notice by the burner test that something was wrong. The judge
accepted that evidence. However, it is to be noted that Mr Friend qualified
that evidence in his cross-examination in relation to the age of the system and
I shall refer to that qualification in due course.
As to the
facts as found by the judge, it seems to me that the following matters were
established:
(1) If there is a crack in the heat exchanger,
that is a potentially dangerous situation because carbon monoxide gases can
escape from the burner chamber into the airduct and airvents and will be
circulated around the living area of the house. Quite plainly, depending on the
concentration and the time over which it continues, that is a potentially dangerous
situation.
(2) Cracks in a heat exchanger of this kind are
caused by expansion and contraction over a period of time; it is a function of
metal fatigue and such cracks are more likely to occur in an old system. They
develop, first of all, from a hair-line crack into a more serious crack.
(3) In fact this heating unit was some 24 years
old and, as such, had reached the end of its useful life — or, indeed, expected
life of some 25 years. However, the defendants did not know that. They assumed,
correctly, that the system had been installed at the time when the house was
built, but apparently they were informed that the house was built in 1972/73
and consequently that the system was 15 years old. That was in fact wrong; the
house was built some 10 years earlier.
The judge
held, however, that the defendants’ view was reasonable that the system was
about 15 years old.
(4) The crack on the left-hand side of the unit
could be seen if a torch and mirror were used without removing the burner in
the heat exchanger chamber. Indeed, as I have indicated, that crack was seen by
everybody except Mr Luckhurst, who considered it to be a rust mark. The other
more serious crack could not be seen without removing the burner.
That, in my
judgment, is the effect of what the judge said at p 46 of his judgment:
If of course
the cracks were obvious and could have been easily seen by any heating
contractor, they would certainly have been in breach of their duty as heating
engineers if they failed to notice them or failed to report on them when they
sent their report to Pollard Machin by whom they had been retained. But these
cracks were not obvious, they were inside the heat exchanger and could only
have been seen at the time of the Luckhursts’ visits on November 13 by the use of
a torch and mirror on which to reflect the cracks high up on the clams inside
the heat exchanger. Indeed, I doubt whether there would have been any
possibility of them seeing the one on the right as all the witnesses really
agree in view of the presence of the burners.
(5) It is clear from the judge’s exposition there
that the cracks were present at the time of the defendants’ inspection.
(6) If there is a crack of any description in a
burner of this age, the system had to be condemned.
The judge, as
I have indicated, accepted the evidence of Mr Friend. Mr Friend drew a
distinction between a ‘service’ and a ‘survey’. When dealing with Mr Friend’s
evidence on this point, the judge said:
He (Mr
Friend) said that he would not expect an engineer carrying out a survey of this
kind to search for cracks in the heat exchanger unless he suspected the burners
were not operating correctly or that there was evidence of carbon monoxide in
the atmosphere.
On the other
hand, Mr Friend had said that if a service was being carried out, then the
burners would have to be removed and a proper inspection made.
In my view,
the judge does not grapple with the problem in terms of the contract because,
as I have indicated, what the defendants said they were doing was to make a
‘full working test and inspection’, and it is plain, in my judgment, that the
word ‘full’ qualifies both ‘test’ and ‘inspection’.
There was no
evidence as to precisely what the defendants were instructed to do but, in my
judgment, the proper conclusion is that they were instructed to do what they
said they were purporting to do as I have already indicated and it seems to me
the plaintiffs were entitled to expect that a full working test and inspection
had been carried out. The defendants’ report was not in any way qualified to
the extent that a full test and inspection had not been carried out or was not
able to be carried out.
The judge
appears to have thought that the defendants were instructed to survey the
system and in those circumstances he accepted Mr Friend’s evidence that a
survey would not require a full inspection of the heat exchanger other than to
look at the burners in operation. But, as I have indicated, his evidence was
qualified in cross-examination, and I refer to p 54 of the judge’s judgment in
relation to that matter:
Does the
practice which I have described
— that is to
say simply relying on a visual examination of the system in action and not a
visual examination of the heat exchanger itself–
mean that
there is no need to search for cracks or to warn of the possible existence of
cracks however old the heating system is?
The answer to this, I think, is clearly no when an appliance is clearly
nearing the end of its useful life and when wear and tear will be taking their
full toll. This was accepted by Mr Friend. He did not accept in
cross-examination that this unit was 24 years old. At that time its actual age
was unconfirmed but he agreed that, as a heating engineer who knew that that
was its age, he would recommend a thorough examination of the heat exchanger
which would include taking out the burners to look for cracks with a torch and
a mirror. He also agreed that if the heat exchanger was, say, 18 to 20 years
old, as he himself had thought it might have been, that could raise the
possibility that there was considerable wear and tear including possible
cracks. He also said that even at 15 years the defendants could have been on
notice or that at such an age there would have been an indication of possible
cracks or problems.
The judge then
records that he did not have a note of that particular answer in
cross-examination. It is unfortunate that that was so because, in my judgment,
it was a crucial answer and clearly qualified what Mr Friend was saying was the
proper practice in relation to such a heat exchanger.
The judge’s
note of Mr Friend’s evidence is as follows:
This age
would alert to the possibilities of unit having considerable wear and tear
including possible cracks. Cracks can develop over years or not be there one
week and there the next. Most cracks start from metal fatigue due to heating
and cooling.
Unfortunately
in that passage it is not clear what age Mr Friend is referring to; it appears
that he was referring to the age of the system as he believed it to be, namely
15 years — but that may not be so.
Later on in Mr
Friend’s evidence the judge’s note is as follows:
I’d remove
burners if I suspected heat exchanger cracked. I would not suspect without
physical sign, not just age . . . If I knew appliance was 24 years old I would
recommend customer to have a thorough examination of heat exchanger and that
would include taking out burners and looking for cracks etc with torch and
mirror.
Some further
light can be shed upon this question because it is plain that in the course of
argument counsel for the plaintiffs was relying on this part of Mr Friend’s
cross-examination. The judge’s note is as follows:
Counsel
queried whether my note, which I have marked with (an) asterisk in this
typescript, was a full record. Plaintiffs’ solicitors’ note has after ‘possible
cracks’ the words ‘Yes even 12-14 years defendants on notice’. Defendants’ note
says ‘age given by defendant in report would also (have given an indication)’.
It seems to me
that the judge’s record of Mr Friend’s evidence in the last sentence of the
passage to which I have referred makes it plain that where the system is
getting to an age — such as 15 years or so — it is reaching a time when cracks
may be expected. At such an age, there would have been an indication of
possible cracks or problems. The judge then addressed himself to the question
whether, in those circumstances, it was sufficient for the defendants not to
inspect other than the manner in which they did. The judge said:
I have not
found this aspect of the case an easy one and there is some force in the
plaintiffs’ counsel’s submission that in the case of a 15-year-old machine the
unit was beginning to become suspect. However, in the light of the whole of the
evidence here I have come to the conclusion that, as the defendants were
following a recognised practice in carrying out their task and inspection on a
unit which they reasonably thought was only 14 to 15 years old and not 23 to 24
years old as it clearly was, and as nothing occurred during their test and
inspection to put them upon enquiry, they should not be held liable for failing
to search the inside of the heat exchanger for possible cracks merely because
this unit had reached the age of 15 years.
As I have
indicated, it seems to me that the effect of the expert evidence was this, that
those called on behalf of the plaintiffs were saying that there should always
be an inspection of the heat exchanger to see if there are cracks, regardless
of the age of the unit.
By the time Mr
Friend had completed his cross-examination, he had, in my view, very
substantially qualified his evidence-in-chief that no such examination as the
plaintiffs’ experts recommended was necessary and that where the age of the
unit was, as the plaintiffs’ solicitors’ note records, 12 to 14 years — or, as
the judge appears to have accepted, 15 years — it was reaching a suspect age
and there was an indication of possible cracks and problems. It was not
sufficient simply to rely on the combustion test.
Moreover, it
seems to me that in the passage to which I have just referred in the judge’s
judgment there is, with respect to him, something of a non sequitur. It
is quite plain that a crack will not necessarily be revealed by the burner test
— that is to say simply by lighting it up and looking at it and seeing whether
the flame looks satisfactory. If it were so, then it would be impossible to
account for the cracks in this case. Assuming that the defendants correctly
observed satisfactory combustion, then it is plain, and I think was
accepted by all witnesses, that that test would not of itself necessarily
reveal cracks in the heat-exchanger unit.
Nevertheless,
the judge said that there was no need to inspect the heat-exchanger unit
because nothing occurred during the burner test and during the rest of the
inspection to put the defendants upon inquiry. With great respect to him, that
seems to me to miss the gravamen of what Mr Friend was saying and the gravamen
of the plaintiffs’ case, namely that where a unit such as this is reaching the
end of its life, then notwithstanding that the burner test may be satisfactory,
a competent heating engineer is on notice that there may be cracks in the
chamber and that, in those circumstances, it is necessary to look for them. It
may be that the more serious crack on the right-hand side of the unit was not
visible without removing the burner, but the crack on the left-hand side was
visible and I see no reason to think that if the inspection recommended by Mr
Garland and Mr Avery had been carried out it would not have been discovered.
But in any event, if the defendants had approached their task as it would seem
Mr Friend was recommending, then perhaps they should have asked the vendors if
they could remove the burners, and if their request was refused, then they
should have qualified their report by pointing out to the plaintiffs that they
had not been able to carry out a full examination of the system.
This is a case
in which the safety of the occupants of the house may be at risk; no doubt the
system had not yet reached that stage — one does not know — but prudence
requires, as it seems to me, that when a unit has reached the stage where
deterioration and cracks may occur, it is not enough to rely simply upon a test
which, it is common ground, will not necessarily reveal cracks. Had the
defendants carried out their inspection by looking with a torch and mirror and
seen nothing, the position might have been different, but they did not look in
that way and, in my judgment, the plaintiffs were entitled to expect that a
full inspection was carried out, as the report indicates that it was. There was
no qualification of any kind in the report and, in my judgment, the judge
unhappily failed to give effect to the qualification which, in my view, was
made in the evidence of Mr Friend.
It is plain
that his evidence did not make an impact on the judge as perhaps it should have
done because he did not have a full note, but nevertheless, in my judgment, it
was a crucial qualification to the standard practice, and it was not enough
simply to say that the defendants here followed the standard practice in the
case of a system which they believed to be 15 years old but which was in fact
24 years old.
In those
circumstances I would allow this appeal.
MANN LJ agreed and did not add anything.
The appeal
was allowed. By agreement judgment for the plaintiffs for £1,500, to include
damages and costs. Costs in the county court on Scale 2.
