REUTERS | Ina Fassbender

It was the halogen lamps that did it, m’lud

In a Cluedo-esque look at what caused a fire at Mead House in Appleshaw, I could say it was Professor Plum with the candlestick in the library or Miss Scarlet with the lead pipe in the conservatory (or even Colonel Mustard with the dagger in the dining room). What may not spring to mind is the pest control man with his poison bait in the bedroom. That isn’t quite Cluedo, but it is what the claimant argued in Palmer v Nightingale.

Intrigued? Then read on.

Palmer v Nightingale (t/a Andover Pest Control)

In March 2013, a fire broke out at Mead House. It did not spread through the whole house, but it still managed to cause considerable damage (which the parties agreed at £685,000 plus interest). Perhaps this was because Mead House is a Grade II listed building and a large part of the roof and second floor was damaged. It looks pretty good now, but didn’t shortly after the fire.

At the time of the fire, the claimant owned Mead House with his children and was renting it out to the Goold family. On that fateful Sunday, the Goolds had friends staying in the north-east bedroom. Luckily, everyone had got up for Sunday breakfast and no-one was injured in the fire.

Mrs Gosling’s “preliminary appraisal report”

The claimant’s told their insurers about the fire and the next day the insurer’s fire investigator, Mrs Gosling, came to site. She visited again a few days later and in early April 2013, she prepared her preliminary appraisal report.

I’ll come back to that report in a minute, but first I should mention the pest control man, Mr Nightingale.

Mr Nightingale had been to the premises five times during 2012 to deal with the tenant’s complaint of a “rodent problem”. He had placed bait blocks in the roof void above the second floor ceiling and, because of a lack of access, had removed downlighters in the ceiling to do so.

Mrs Gosling described the plasterboard ceiling and the insulation above it, along with the wiring and light fittings. She said she found the remains of bait blocks, which were “situated in close proximity to the edge of the hole into which the halogen downlighter was recessed”.

In her preliminary conclusions, she said:

“I consider the most likely cause of the fire to be associated with the halogen light fittings; either an incendive electrical fault or nearby combustible materials (such as rodents, fly, insulation, timber or the rodent blocks) being ignited by radiant and/or conducted heat from the halogen bulbs.”

She suggested that as Mr Nightingale was the last person to work in the roof space, it was possible that the cause of the fire was associated with his actions, like placing one of the bait blocks “on top of one of the light fittings or moving insulation”.

Tests were necessary to see if heat from the halogen bulbs was sufficient to ignite the bait blocks and the insulation. Interestingly, when these tests were carried out (between June 2013 and February 2014), they showed that the halogen lamps were not sufficient to cause the bait blocks to ignite, “only to char them”, but the bait blocks did ignite if a direct flame was applied to them.

Mrs Gosling’s May report

Mrs Gosling prepared another report in May 2013 and this time she said all of the bait blocks were “situated in very close proximity to the edge of the hole”.

In May 2013, the fire investigation officer noted that there was also burning around the undamaged downlighters and concluded that the cause of the fire was the “ignition of insulation material in roof space from halogen downlighters”.

Claimant’s new expert

When Mrs Gosling went on maternity leave, her colleague, Mr Smith replaced her as the claimant’s expert. It seems that Mr Smith relied on Mrs Gosling’s preliminary appraisal report. It formed the basis of “much of [his] expert consideration”. He also relied on her May 2013 report. He had:

“…faithfully copied out what [she] had said in her May 2016 report, which was not accurate.”

Where should the expert’s information come from?

Pausing there, the question that this part of the judgment raises goes to the heart of an expert’s evidence and where an expert gets their information from. By that I mean, what sources of information are they allowed to use and what should they say about them?

As I’m sure you are all aware, the requirements for expert evidence are set out in three main places:

  • CPR 35.10, which provides that an expert’s report must comply with Practice Direction 35 (PD 35).
  • PD 35. PD 35.3 explains the form and content of an expert’s report and includes matters such as:
    • giving details of any literature or other material that has been relied on (paragraph 3.2(2));
    • making clear which of the facts stated in the report are within the expert’s own knowledge (paragraph 3.2(4));
    • saying who carried out any “examination, measurement, test or experiment” that the expert has used for the report (paragraph 3.2(5)); and
    • containing a statement that the expert understands their duty to the court, that they have complied with that duty and that they are aware of the requirements of CPR 35, PD 35 and the Guidance for the Instruction of Experts in Civil Claims (Guidance) (paragraph 3.2(9)).
  • The Guidance, in particular paragraphs 48-60.

Importantly, an expert’s report must be verified by a statement of truth:

“I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.”

Mr Smith’s expert evidence

It is what Coulson J said about Mr Smith’s expert evidence that really caught my attention, particularly his reliance on Mrs Gosling’s two reports and the claimant’s reluctance to disclose them.

“This led to a certain amount of difficulty in respect of the source of some of the information in Mr Smith’s report… However, the belated provision of Mrs Gosling’s first reports… eventually removed most of the unnecessary mystery surrounding that aspect of the case.”

I appreciate that it isn’t clear from the judgment exactly what Mr Smith said in his report, so we cannot know for sure whether it was clear to the defendant that someone other than Mr Smith had examined Mead House shortly after the fire.

However, surely Mr Smith must have realised that he would have to identify the source of the information he was using to form the basis of his report. As paragraph 55 of the Guidance states:

“The mandatory statement of the substance of all material instructions should not be incomplete or otherwise tend to mislead. The imperative is transparency. The term ‘instructions’ includes all material that solicitors send to experts. These should be listed, with dates, in the report or an appendix. The omission from the statement of ‘off-the-record’ oral instructions is not permitted. Courts may allow cross-examination about the instructions if there are reasonable grounds to consider that the statement may be inaccurate or incomplete.”

I also struggle with why the claimant seemed to be so unwilling to disclose Mrs Gosling’s two reports: the preliminary appraisal report was not disclosed until shortly before the trial and the May 2013 report were not provided until during the trial. Coulson J suggested that in the claimant’s desire to prove his case, he had:

“…ignored what Mrs Gosling had herself found and how she described it.”

Even if that wasn’t the case, it must have made for some awkward moments when Mr Smith met with the defendant’s expert, Mr Gow, and they put together their agreed joint statement.

Aluminium reflector or a dichroic coated reflector?

The downlighters at Mead House should have used “aluminium low voltage lamps”, which means the bulbs would have aluminium reflectors so that most of the heat from the bulb goes forwards, out of the front of the lamp (dichroic coated reflectors means most of the heat goes backwards). Using the latter in downlighters designed for aluminium reflectors is a fire risk, and is contrary to the Electrical Safety Council’s advice.

Now, I don’t know about you, but I’m off to check all those halogen bulbs in the downlighters in my house, just to make sure they are the right sort of bulb. Who knew it could be so complicated?

And for the record, the picture at the top is a “traditional light bulb with carbon filament”.

MCMS Ltd Matt Molloy

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