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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McLean & Ors v Scottish Power Plc [2000] ScotCS 6 (12 January 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/6.html Cite as: [2000] ScotCS 6

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The first pursuer is the heritable proprietor of the dwelling house known as 60 Coatbridge Road, Glenmavis, by Airdrie. This is a three bedroomed detached dwelling house. On 30 June 1994 the first pursuer and his wife, the second pursuer, were on holiday with their son, having left their two grown up daughters, Jennifer and Lynsey McLean, behind.

On the evening of 30 June Jennifer McLean went out in company with a friend. Lynsey McLean spent the evening alone in the house. She went to bed at about 10 p.m. having washed her hair and thereafter dried it with an electric hair dryer. At that time no lights were left switched on in the house. The electrical equipment in the house included an electrical oven with a built-in clock in the kitchen on the ground floor and in the upper storey of the house an electric immersion heater for the hot water set to operate by a clock mechanism in one bedroom and an electric clock in another bedroom occupied by Jennifer McLean.

Jennifer McLean returned to the house some time shortly before midnight in company with her friend. Nothing untoward was noted by Jennifer McLean as the car in which she was a passenger was driven into the drive of the house and past the gable end of the house to be parked at the rear of the house. She and her friend entered the house at the back door of the house. Her companion went through to the breakfast room of the house before leaving. While Jennifer McLean when giving evidence was unable to recollect whether any light on the ground floor had been turned on at that time, I consider it significant that she told the defenders' expert witness in October 1994 that the lights had been turned on in the kitchen. I see no reason to doubt that this was the case. After her friend left Jennifer McLean went up the stairs to her bedroom. She noticed that her electric clock there was showing the time as 11.59. Shortly thereafter she went through to the bathroom of the house which was between the two bedrooms on the upper storey and was lit by a velox window light which was open at the time. She turned on the light and while there became conscious of a smell of smoke but nothing else suspicious. Thereafter she returned to the ground floor to check that the doors of the house were locked and that the electrical plug to the television set was removed. She was checking that the front door was locked and was standing in the vestibule at the front door, when she noticed what appeared to be a glow through a hole in the ceiling at a point where the electric supply cable serving the house came through and down to the cablehead situated in the vestibule. She immediately alerted her sister who had been asleep at the time. Together they made their way outside and immediately were aware of smoke coming out of the roof of the house. Lynsey McLean made her way back into the house to make an emergency call to the Fire Brigade but in her excitement was unable to make contact though it appeared to her that the telephone was operating normally. She then made her way outside and there she and Jennifer McLean met up with a neighbour, Angus Lamont. It only remains to note that Lynsey McLean also spoke to having been conscious at some time before she was finally woken up to a sound as though of rain on the roof of the house. The meteorological evidence was that there had been no rain in the course of the evening. There was some speculation from Dr. Lygate, an expert witness who gave evidence for the pursuers, that this could have been a crackling sound of fire but since Lynsey McLean could put no time to the sound, I do not find this evidence to be of assistance in the determination of this case.

Angus Lamont had been sitting with his parents in the living room of their house at 62 Coatbridge Road. At that time together with his parents he had been watching television. The windows looked out towards 60 Coatbridge Road. He noticed smoke passing the windows. At the time when smoke was first observed by both himself and his mother, there had been some distortion of the television picture noted by both witnesses. He went outside with his father at the front of the house while his mother went to the back door. The smoke appeared to be quite thick and to obscure 60 Coatbridge Road. Angus Lamont having met up with Jennifer and Lynsey McLean then called to his mother to telephone the fire brigade. She did this shortly after, the call being timed at 12.10 a.m. Mrs. Lamont said that the lights in her house went out as she was telephoning for the Fire Brigade. Dr. Lygate, who inspected the premises at 60 Coatbridge Road on 2 July 1994 and again on 29 August 1994 before the premises were reinstated, gave evidence that he had spoken to the owner of 48 Coatbridge Road, a Mrs. Brown, and to Angus Lamont's father before their deaths. Mrs. Brown had told him that her lights were flickering and that her television set had given a loud crack. She had switched off her lights and looked across the street to see smoke coming from the first pursuer's house. She had then seen the cable fall from the pole. Mr. Lamont told him that he had noticed the lights in his house flickering before the fire was discovered.

The witnesses, Jennifer and Lynsey McLean and Angus and Mrs. Lamont, all described noting when they were outside, that the supply cable which led from a pole on the opposite side of the road across to one gable wall of 60 Coatbridge Road, appeared to be sparking and on fire at points along its length and in particular at the point where the supply cable entered through the gable wall into the roof space of 60 Coatbridge Road. These witnesses also spoke to the cable gradually dropping and eventually breaking away at the outside of the gable wall to lie across the top a hedge in the garden of 60 Coatbridge Road. Angus Lamont was sufficiently alarmed by this to arrange that traffic would be stopped before it could pass under the wire. The weight of the evidence of the expert witnesses was that the manifestations of distortion of the television picture and flickering of the house lights, together with the observations of sparking or fire along the supply cable, indicated that the supply to the domestic circuit in the pursuers' house had already been broken by arcing within the cable in the roof space with the consequence that the cable was burning back from that point and sending pulses of energy back along the supply cable sufficient to create these manifestations.

The electrical supply for the first pursuer's property and others in the neighbourhood was distributed from a nearby electrical sub-station some half a mile away where a protective 315 amp fuse for the line was located. It was carried to the pole located on the opposite side of Coatbridge Road adjacent to 49 Coatbridge Road. Two spur lines left the pole, the first of which supplied 48 Coatbridge Road and the other 60, 62 and 64 Coatbridge Road. The latter line was connected to a pair of overhead conductors on the gable wall of the first pursuer's property. A single core split concentric cable was connected to these conductors and routed along the verge of the roof to a point near the front of the house. There it was carried down a foot or so and taken into the roof space. It was then routed through the roof space before passing over a floor joist and down through the hole in the ceiling of the vestibule to the cable head, meter and consumer's distribution boards on the wall of the vestibule within a cupboard. This supply cable had been installed in place of an earlier supply cable, the remains of which were left in the roof space together with the disused supply fuses. The new cable had been installed in about 1989. A bundle of cables taped together with the electric supply cable was carried from the distribution boards up to and through the same hole into the roof space. Separate cables were carried through the roof space to supply the immersion heater for the hot water, two separate lighting circuits and the 30 amp ring main for the first floor. Within the roof space there was lath and plaster forming the ceiling of the ground floor laid between the rafters. Between the rafter and on top of the lath and plaster glass fibre insulation quilts had been laid. There was no dispute that the 315 amp fuse had not operated within the sub-station and that accordingly electric current had continued to flow through the supply line to its end in the roof space of the pursuers' house until the external cable had parted at the gable.

Dr. Lygate is a fully qualified and experienced fire engineer and principal consultant with International Fire Investigators and Consultants. He made a detailed examination of the house and in particular of the loft space so far as possible on 2 July and again on 29 August 1994. His findings are contained in a report produced and referred to in his evidence. He concluded from these examinations and in particular from the damage patterns that were observed by him in the roof timbers that the seat of the fire had been in the roof space. This accorded with the findings of the defenders' expert witness, Mr. Mortimer. Of particular moment to Dr. Lygate in determining the point of origin of the fire, which both Dr. Lygate and Mr. Mortimer in his report agreed to have been caused by an incendive electrical fault, was the nature of the fire damage to the joist over which the supply cable passed before going down through the hole in the ceiling to the cable head. He measured the depth of charring on both sides of the joist and found that the depth of charring was greater on the side further from the hole. Additionally there was a similar and distinct difference in the nature of the charring of the laths on the side of the joist further from the hole from that about the hole. These observations led him to a conclusion that the point of origin had been at some point immediately beyond the side of the joist further from the hole. These observations and his conclusion were supplemented by other factors which he observed as bearing on the point of origin of the fire. The fire appeared to have begun at a low level within the roof space. The greatest intensity appeared to be at the point below where the roof had been penetrated by fire, namely above the roof space in front of the bathroom wall. The conclusion as to point of origin was consistent with the directional indicators for the spread of the fire derived from the burning patterns and the relative charring to the roof timbers, the pole plate, the wall plate and the beam supporting a dormer window in the same area observed on his first visit on 2 July 1994. He therefore gave as his opinion that the point of origin had been directly below where the supply cable reached the edge of the joist and in the immediate vicinity of the bend in the unsevered wires forming the remains of the supply cable observed on 2 July 1994. In reaching this view he had further taken into account features which would have served to affect the manner of fire spread, including the presence or absence of ventilation for the fire and the existence of the glass fibre insulation matting between the joints and over the laths for the ground floor ceiling.

The precision of Dr. Lygate's determination of the point of origin was challenged by Mr. Mortimer both in his report and in evidence. In his report dated 20 October 1999 Mr. Mortimer records that "it is alleged that the fire originated at the electricity supply cable, where it had been bent downward to penetrate the ceiling of the first floor. This is generally consistent with my opinion of the area of fire origin, although I would not define it so precisely." In evidence Mr. Mortimer conceded that he had not carried out any measurements of the charred joists and indeed that he did not have any qualifications as a fire engineer, unlike Dr. Lygate. He also accepted that at the time of his examination it was only his third fire investigation. He based his opinion upon his general engineering and scientific experience. He had generally examined the area of the fire damage on 17 October 1994 and had defined the area of fire origin within the relatively broad area hatched in red on a plan appended to his report. This covered the whole of the area of the roof space between the two bedroom dormer windows and extended to the wall of the bathroom. He had studied the photographs taken by Dr. Lygate but these had not caused him to change his views. He accepted that in order to refine the area within which the fire had started he would have had to check the depth of charring in the timbers but that he had not considered that to be necessary at the time and so had not done so.

I found the evidence of Dr. Lygate as to the point of origin to be entirely convincing and nothing in Mr. Mortimer's criticism of it to undermine the conclusion that the point of origin of the fire was close to and under the point where the supply cable passed over and was bent down beside a joist to enter a hole in the ceiling of the ground floor of the house.

For the fire to have started in the roof space required the introduction there of a source of fire. There was no dispute in the expert evidence that the only reasonable conclusion was that this had been caused by an electrical fault. Nor was it in dispute that the only candidates were the supply cable and the electrical wiring supplying the domestic circuits which passed through the roof space whose circuit breakers were found to have tripped after the fire. Furthermore it was not in dispute that that up until the time when the clock on the kitchen cooker stopped showing the time as 12.07, there must have been electrical power passing through the supply cable and in to the domestic supply system since the circuit breaker for the supply to the cooker was found still be in the on position after the fire and had not tripped. It is to be noted that no point was made that the time switch on the supply to the immersion heater in one of the upper bedrooms was found to have stopped at 2345, since it appeared that the knurled knob controlling the switch had been altered after the fire as Dr. Lygate noted in his report from his observation on 29 August 1994.

It was not in dispute that the lighting circuits in the ground and first floor of the property were supplied by pairs of lead covered rubber insulated conductors. These lighting conductors were old and in poor condition. Mr. Thomas noted that at the consumer distribution board in the vestibule, where they were not fire damaged, they were severely degraded and cracked and conductors on some of the cables were exposed. These cables were routed from the distribution board on the ground floor to enter the roof space at the wall plate. They then ran between the joists under the glass fibre insulation quilt. Those cables supplying ground floor circuits were then routed over the joists and were connected to ceiling roses in the ground floor ceiling. Each lighting circuit was protected by a 5 amp miniature circuit breaker. After the fire both breakers were found to have tripped. Dr. Lygate noted that beads had formed on the ends of certain lighting conductors at a point where they exited from underneath the insulation quilt approximately 1 metre away from the hole in the ceiling through which the supply cable descended into the vestibule. He stated that these beads could either have been formed when the lead covering on the conductors melted or as the result of arcing on the conductor. However the damage to the surrounding timbers at that point was less severe as compared with that about the hole into the vestibule. Such damage was inconsistent with arcing having caused a fire to start at the point where the beads were seen. Furthermore on the evidence of Jennifer McLean, it appeared that the lighting circuits had operated normally at about midnight very shortly before she first became conscious any sign of fire. As Mr. Mortimer agreed in his evidence, arcing from such cables was only likely to cause a fire which started slowly with smouldering over a period of time. The tripping of the breakers was equally consistent with the effect of heat from a fire started elsewhere which destroyed the protective covering on the wiring and caused a fault current to flow from the live or neutral conductor to earth. Dr. Lygate concluded that on balance, having regard to the fact that the lights were working just before the fire was discovered, from the damage patterns which he discerned at the point where there were beads on the conductors and from his knowledge of the effect of fire upon such cables, the fire had not started as a result of a defect in the lighting circuits. Mr. Thomas, a very experienced electrical engineer, gave evidence for the pursuers. He was called in at the suggestion of Dr. Lygate. He made a detailed examination on his own account of the same wiring on 29 August 1994. His observations were contained in a separate report. He had subjected the surviving parts of the cables to close examination and to careful handling to determine whether there was any indication of arcing by way of notching or other marks on them as opposed to the effects of fire damage. He concluded that there were no points of arcing in the lighting wiring that would be consistent with a major fault capable of starting a fire and that the tripping of the circuit breakers was consistent with the spread of a fire to involve the lighting circuit, destroying the insulation and leading to a fault and trip before the external electrical supply to the domestic circuit was finally interrupted. His opinion was that the fire was not caused by a fault in the lighting circuit. The only criticism that was offered by Mr. Mortimer to the evidence of these two witnesses was that no examination had been made of the wire at the point where the beads had formed as could have been done by the removal of the beads to examine what might lie beneath. The force of such criticism is largely dispelled since it was open to Mr. Mortimer to have carried out such an examination and that he did not do. Furthermore it did not answer the points made about the use

The two upstairs bedrooms were fitted with 13 amp electrical outlets supplied by a pvc insulated cable, the supply and return cables of which passed through the hole in the ceiling along with the electrical supply cable to the distribution panel. It was in to this supply that Jennifer McLean's clock was plugged. This ring supply was connected to a 30 amp circuit breaker found after the fire to have tripped. The conductors were found to be severed at a point some distance from the hole and a substantial distance from the point of origin of the fire. Dr. Lygate surmised that the break had been caused by mechanical damage such as the fall of debris as a result of the fire. He noted that damage to the roof timbers in the area was less severe than in the area of the hole through which the supply cable passed. Examination of the conductors established that they were denuded of their pvc insulation over part of their length and in the vicinity of the seat of the fire. No marks or notches were detected to suggest that the cable had arced. The melting of the pvc insulation through an external source of fire and heat would have allowed a fault current to flow between the live, neutral and earth conductors and bring about tripping of the circuit breaker. Furthermore the observation of her electrical clock by Jennifer McLean as showing a time of 11.59 suggested that at that time the electrical supply was then still operative. All these factors supported the conclusion of Dr. Lygate and Mr. Thomas expressed in their evidence that there were no defects in the ring mains in the roof space which would be consistent with their having been the source of ignition and hence a cause of the fire. Mr. Mortimer's evidence did not contradict this conclusion except in so far as he attempted to suggest that the timing as shown on the clock face might not be inconsistent with an earlier fault in the ring main. However he agreed that this was a very late thought on his part. It was never put to the pursuers' experts and indeed depended upon speculation as to the type of clock owned by Jennifer McLean. Mr. Mortimer did not suggest that the ring main wiring was in itself in poor condition nor did he point to anything in what he observed to justify a conclusion that there had been some indication of arcing along its length. I therefore accept the evidence of the pursuers' experts which excluded the ring main as the source of ignition giving rise to the fire.

The immersion heater in one of the upper bedrooms was supplied by a pvc insulated cable protected by a 15 amp circuit breaker on a distribution board in the vestibule, which breaker was found after the fire to be tripped. The cable was connected to a switch in the bedroom and then routed to a time clock before it reached the immersion heater in the water tank. The switch was still in the on position after the fire. The cable passed through the hole beside the supply cable to the roof space but was nowhere else in close proximity to the supply cable although part of the cable in the roof space had been denuded of its insulation in the vicinity of the fire. Both Dr. Lygate and Mr. Thomas examined the cable and detected no notches or other marks which could be attributed to arcing along its length. Mr. Thomas in particular said that he could find no fault with the electrical installation for the immersion heater. It was not suggested otherwise by Mr. Mortimer. I therefore accept the evidence of the pursuers' experts which excluded this supply as a source of ignition giving rise to the fire.

As I understood the evidence of all three of the expert witnesses who gave evidence the fire had to have started within the roof space at some point in time before Jennifer McLean became conscious of smoke around midnight. It was also accepted by these witnesses that the fire must have been taken hold to a point where it was producing amounts of smoke by about 12.10 a.m. at which time the electric supply cable within the roof space had already become severed from domestic supply. The issue which separated the experts was related to the premise from which the pursuers' experts operated, namely that while there had already been an "explosion" of hot gases and molten copper particles sufficient to start a fire from within the supply cable before midnight, the supply cable had remained sufficiently intact to continue to supply electricity to the domestic electrical installations until the total interruption of the supply at about 12.07 a.m. This premise depended upon a further inference that the explosion had come about because the supply cable had been installed with a bend in its length which was substantially outwith the manufacturers' minimum recommended radius for a such cable and that a defect had developed within the cable which had allowed arcing to take place within the cable.

When Dr. Lygate examined the roof space on 2 July 1994 he noted that the supply cable was bent over the joist with the central core having ruptured due to arcing though several conductors forming the outer core were still intact. The cable was photographed by him at that location. He noted that the load conductor had severed completely but that some of the external conductors were still intact. Other of the severed strands had the appearance of having been blown apart by the force of arcing. He further noted that the insulation around the supply cable had been consumed along a length about 4 metres from the hole through which it passed into the vestibule, whereas the pvc cover on the previous supply cable which lay within a short distance of the supply cable had not been consumed along such a great distance. This observation led him to conclude that the new supply cable had been much hotter than the old supply cable and that the denuding of its insulation cover was not solely the effect of the fire upon the cable but a result of the condition of the cable itself. These findings were not challenged in detail by Mr. Mortimer.

In considering the degree to which the supply cable appeared to have had a tight bending radius, both Dr. Lygate and Mr. Thomas, who measured the bend radius when he examined the fire damage on 29 August 1994, discounted the possibility that the bend radius had been distorted and made tighter after the fire by falling under its own weight. Likewise they did not consider that the bend radius would have been distorted by the fact that at some distance from the bend there was evidence that the cable had been stood upon by firemen in fighting the fire. The reasons given for this opinion appeared to me to be sound and were not materially challenged by Mr. Mortimer. The bend in the cable was measured by Mr. Thomas and judged by him from his experience in supervising the installation of and in examining a large number of cables, as having a radius of curvature of the order of 50 mm. It was clear from his evidence that this estimate was a generous one, erring on the side of caution. For his part Mr. Mortimer in the course of his examination of the locus on 17 October 1994 noted that the supply cable turned through an angle of approximately 90 degrees over the joist and then passed vertically downwards through the hole. Subject to his qualification that the cable may have been affected by physical disturbance during and after the fire, he measured the radius at 50 mm. He agreed in evidence that it was possible that the cable prior to the fire had been bent to that extent although in his initial report he had expressed the opinion that it would have been very difficult to bend it to such a radius. But it did not appear at the time that he had a suitable off-cut for testing in his possession. I hold that prior to the fire the cable was carried from the roof space over a joist and down through the hole into the vestibule in a bend which conformed to that with a radius of curvature of not more than 50 mm. It is again not in dispute within the expert evidence that the manufacturers' recommendation for such a cable was that the minimum radius for any bend should be 125 mm. and that this recommendation was made with a view to reducing the risk of stress upon the protective covering leading to a fault within the cable.

Both Dr. Lygate and Mr. Thomas expressed the opinion that with a radius of curvature of 50 mm. the pvc sheath to the inner core of the supply cable would be stressed, particularly over the upper surface on the bend, to the point where it would degrade more rapidly than in normal circumstances. It was not in dispute that over a period of time material such as pvc will degrade naturally. The danger is that it will ultimately thin to such a point that electricity can leak through it and hasten the process of degradation. The process of degradation will also be affected by temperature changes of the kind that are likely to be found within a roof space. The expert witnesses referred at times in evidence to such degradation as "creep". If the process of degradation has hastened to the point where electricity from a strand of the live core of the cable can pass to and the strand itself can then make contact with an earth or neutral strand which is wound round the pvc sheath, arcing occurs. With arcing comes the creation of sufficient heat to melt the copper of the strands and create hot gases sufficient to build up and produce an explosion of hot gases and molten copper such as to rupture and break out from the outer sheath which would in itself have been further degraded by the heat at the point of arcing. The explosion of melted copper and hot gases would in itself be sufficient to provide a source of ignition outside the cable. The opinion of Dr. Lygate and Mr. Thomas was that it was possible that a fault of such a nature might be of an intermittent nature since the effect of the explosion could serve to break the contact between the live strand and the other, causing the latter to flail outwards into a position such as was observed for some of the outer strands at the point of rupture of the cable after the fire. The immediate source of heat would then be dissipated following such a release of energy so that further faulting would be delayed. They expressed the opinion that it was thus possible that the fault being of an intermittent nature with progressive degradation of the cable occurring over a material period of time, during which the remaining strands of the inner live core of the cable would continue to carry an electrical supply to the domestic system in the house, it could be an appreciable period of time, even minutes, until the final separation of the remaining strands took place. Dr. Lygate pointed to the fact that in one of the photographs taken by him of the live strands on the inner or house side of the break in the supply cable, it appeared that while the ends of a number of the live strands had fused together in one mass, at least two of the remainder were separate and bore separate and distinct marks of arcing at their ends. This he considered to be consistent with a fault in the cable which had occurred over such a period of time. He had experience of examining at least one fire in the past in which a single core split concentric cable, of a similar design to that in the pursuers' premises, had faulted at a bend and caused a fire. For his part Mr. Thomas expressed his opinion that it was plausible that a fault on the supply cable had caused a fire which affected the domestic circuits while the cable had retained sufficient integrity whilst faulting to provide and let through energy sufficient to operate the respective contact breakers on the domestic circuits as the fire spread. In doing so he had in mind that in his view none of the defects identified in the domestic installation was associated with a release of electrical energy sufficient to cause a fire. Both Dr. Lygate and Mr. Thomas conceded that the fire must have taken hold some minutes at the very least before the final separation of the live strands of the supply cable.

It was this factor which gave rise to the principal dispute between the pursuers' experts and Mr. Mortimer for the defenders. It is proper to note however that as Mr. Mortimer stated in his report of 20 October 1999 he observed no signs of an incendive defect on any of the wiring of the domestic circuits that remained at the time of his examination on 17 October 1994 albeit that he noted that the wiring was discontinuous in several places and had been disturbed to a large extent. He therefore speculated that any such signs that might have existed might have been disturbed. But for the reasons that I have set out above, I consider that the force of this speculation is substantially diminished by the fact that the evidence of Dr. Lygate justifies the conclusion that the origin of the fire was at the point below the break in the supply cable. Accordingly this fact is a strong pointer to a defect in the supply cable as being responsible as the source of ignition of the fire. Mr. Mortimer however carried out tests which are recorded in his second report to determine whether he could replicate a failure of the insulation around a similar cable by subjecting it to bending stress. He accepted the criticism that his experiments could not exactly replicate the effect of such stress in circumstances where the cable had been subjected over a period of time to both mechanical stress and to the effects of changes of temperature. Nonetheless one of the findings made by him was to the effect that there were substantial variations in the thickness of the surrounding pvc sheath in the cable used for his experiments with significant deviations below the manufacturers' stated thickness which could only affect the sheath's capacity to resist stress. Furthermore his experiments in achieving arcing in a similar cable by mechanical means did not, as again he accepted, precisely replicate the conditions postulated by the pursuers' expert witnesses. In particular they inhibited any such flailing of the strands which these witnesses postulated as having occurred and as being consistent with the observations of the positions of the individual strands noted by Dr. Lygate after the fire. More to the point, although the separation was in micro-seconds rather than minutes, these experiments did produce two separate and distinct episodes of "explosion" from the tested cable on one occasion. In the end of the day Mr. Mortimer accepted the possibility of discrete arcing activity taking place during a fault. In cross-examination he further accepted that his tests did not show that it was impossible for the sequence of events required by the explanation for the fire put forward by the pursuers' witnesses to occur.

It was not disputed between the parties that if at the end of the day the court was satisfied on a balance of probability that a defect in the cable was the cause of the fire, the defenders were thereby in breach of the Electricity Supply Regulations 1988 and in particular Regulations 17 and 25(1) as pleaded. The opposing submissions were directed to this case of fault alone and to none of the other cases of fault pleaded by the pursuers.

In my opinion, the pursuers have established that on a balance of probability a defect in the cable was the cause of the fire. If, as I accept to be the case, the point of origin of the fire was as stated by Dr. Lygate, namely in close proximity to the cable, and at a point where an explosion of the kind postulated by Mr. Thomas and Dr. Lygate was capable of acting as a source of fire in the surrounding area, then the evidence was clear that the only observed defect in the wiring in that area was in the cable and that the domestic wiring that passed through the area showed no signs of arcing. It was argued for the defenders that neither Dr. Lygate nor Mr. Thomas had had any prior experience of a defect in a supply cable which had operated in such a way, that is to say where arcing had initially taken place and the cable had thus been partially damaged but the cable had nevertheless continued to carry electricity to the domestic supply for a period of time measured in minutes and not micro-seconds before finally failing. The theoretical possibility that this had occurred, it was said, was not supported by the experiments carried out by Mr. Mortimer. Moreover the theory upon which Dr. Lygate and Mr. Thomas depended in ascribing a defect in the cable as the cause of the fire, also required that within a relatively short period of time after its installation, the sheath of the live cable had become so thin that electricity could pass through it and ultimately allow contact to be made between a live strand and at least one of the neutral or earth strands wrapped around the sheath, so causing arcing to take place. Again this condition was inconsistent with the relatively limited age of the cable and the experiments in bending the cable carried out by Mr. Mortimer. In my opinion, these considerations have to be weighed against the consequence of excluding the cable as the source of ignition as well as the evidence in relation to the existence or otherwise of a fault in the domestic circuits as a source of fire. For the cable to be excluded as the source of ignition would require that the fire had started elsewhere than at the point of origin identified by Dr. Lygate and without any precise definition of the point of origin and without any precise connection with any identified faults in the domestic wiring circuits. In this regard the positive observations noted on examination after the fire which were consistent with the evidence of the witnesses at the fire, effectively exclude the immersion cable, the 30 amp ring main and the upstairs lighting circuit as the source of fire. Furthermore the possibility of the downstairs lighting circuit having been the source of fire is substantially discounted by evidence that lights downstairs were put on when Jennifer McLean returned to the house, but more so by the evidence of damage noted by Dr. Lygate following the fire which provided the clearest proof that arcing in that circuit could not have caused the fire, there being no evidence of a smouldering fire even in the area where the wiring had been wholly destroyed and thus was discontinuous. A further consideration is that if the fire had spread from some unidentified point of origin to engulf the service cable and had then caused arcing from the effects of heat applied to it externally, the evidence of Mr. Mortimer was that the service cable had inherent fire resistance qualities which enabled it to resist fire without arcing for appreciable periods of time. In experiments carried out by him, albeit with thicker cable but applying a source of heat greater than would be the case in a domestic fire, the periods of resistance had varied from between 26 minutes and 73 minutes. The best evidence for the time when the fire occurred was that it started within something of the order 8 to 15 minutes before the domestic supply failed at 12.07 a.m. As was apparent from the photographs, the supply cable alone of the wiring in

In the end of the day I am satisfied on a balance of probabilities that the positive indications that the fire began as a result of a defect in the supply cable outweigh all contrary possibilities and that these other possibilities can be eliminated. The point of origin and the bend in the cable allied to the clear indications of arcing having taken place in the supply cable at a point on or immediately beside the bend where stress could have affected the protective sheath, set against the other findings in relation to the domestic circuits are also consistent with the witness evidence, and particularly that of Jennifer McLean both as to the lack of any indications of fire when she arrived back at the house and her observation subsequently of the glow of fire seen through the hole in the ceiling of the vestibule. I therefore hold that there had been an initial occurrence of arcing in the supply cable in the area at which the cable had been bent substantially beyond the manufacturers' recommendation and was thus susceptible to stress, causing an explosion of molten copper and hot gases which had caused a fire to start in the roof space in the immediate area below the cable followed by progressive failure of the cable over an appreciable period of time to the point where at about 12.07 a.m. the remaining live strands of the cable finally parted and the supply to the domestic circuit failed. In so holding I have preferred the expert evidence of Dr. Lygate and Mr. Thomas to that of Mr. Mortimer. I do so for a number of reasons which I have already set out above. I would add that Mr. Mortimer did not impress me with the manner in which at a late stage in the evidence he proponed possibilities which had not been put to the pursuers' witnesses or had otherwise been explored in evidence. One of these related to the design of the electric clock in Jennifer McLean's bedroom and a suggestion, which I found difficult to follow, that there could have been an interruption in the domestic supply through arcing which would have still permitted it to continue in operation. Another was a criticism that neither Mr. Thomas nor Dr. Lygate had examined the ends of the extant domestic wiring where beads of lead appeared, to determine whether there was evidence of arcing below them. As Mr. Mortimer had not done so either, this criticism lost much of its force but was in any event countered by the other findings of Dr. Lygate in that location which, he explained, were inconsistent with the existence of a smouldering fire.

At the end of the day counsel for the defenders argued that on the evidence the court should not do more than determine that the cause of the fire remained in doubt with the consequence that the pursuers had failed to discharge the burden of proof. He referred to Rhesa Shipping S.A. v. Edmunds 1985 W.L.R. 948 and in particular the speech of Lord Brandon at p. 955E onwards, a case to which reference was made by Lord Caplan in particular in Dingley v. The Chief Constable, Strathclyde Police 1998 S.C. 548. In my opinion, the facts in Rhesa Shipping S.A. fall to be distinguished from those in the present. In the former case the plaintiffs were entitled to recover if they could prove that the loss of the vessel was caused by "perils of the sea". Prior to the trial they had sought to explain the loss in various ways but those explanations were subsequently abandoned and at the trial they finally advanced as an explanation for the loss a collision with an unidentified, moving, submerged submarine, which was never detected, never seen and which never surfaced. This explanation was contested by the defendants. I accept that Lord Brandon, after making a reference to the dictum of Sherlock Holmes that "when you have eliminated the impossible, whatever remains, however improbable, must be the truth", emphasised that a judge is not bound always to make a finding one way or another with regard to the facts averred by the parties and accordingly that he has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden and that there are cases in which, owing the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for a judge to take. However he went on to say this:

In the present case, not only was there evidence from witnesses present at the time of the fire, including occupants of the house, who spoke to their recollection of the use of the domestic circuits, but there was a careful examination immediately following the fire of what remained at the seat of the fire. All the experts were agreed that the cause of the fire was an electrical fault. The nature of the electrical supply to and within the house was known and identified. Thus the only issue was whether there was acceptable proof on a balance of probability identifying the cable as the source of the fire as against any other possibility arising from within other circuits, and in particular, two domestic circuits in which it was accepted by the experts that the wiring was in a poor condition and thus could give rise to the risk of arcing at any time. Moreover it was a matter of concession that the theory upon which the pursuers' explanation depended in fixing the supply cable as the source of fire, was one which while sound in scientific theory, was not hitherto known to them as a proven cause of such a fire. However on the balance of the evidence I find the expert evidence which excludes the domestic circuits as a source of the fire to be much more compelling than the improbabilities which were said to accompany the theory upon which the cause postulated by Dr. Lygate and Mr. Thomas was founded. For these reasons I hold that the pursuers have proved their case.

There is no dispute that in that event the defenders are liable to the pursuers in damages for the loss, injury and damage sustained by them. Quantum of damages has been agreed between the parties as set out in a joint minute of agreement as follows, namely that the defenders are liable in terms of the first conclusion in the sum of £48,700, in terms of the second conclusion in the sum of £11,979.63, in terms of the third conclusion in the sum of £6.445.14, in terms of the fourth conclusion in the sum of £2,081.56 and in terms of the fifth conclusion in the sum of £2,081.55. It is further agreed that the above sums are exclusive of interest and that interest shall be applied to each of the sums at the judicial rate from the date of citation.

In the whole circumstances I shall sustain the first plea-in-law for the pursuers, repel the first, second and third pleas-in-law for the defenders and grant decree in the agreed sums together with interest as set out in the joint minute of agreement.