Titanium Polyurethane Seal Company v New Forest District Council

A supplier applying a compliant sports-floor sealant may owe obligations extending beyond supplying a product meeting the relevant standard. The product must remain safe for its intended use when maintained in accordance with reasonable, suitably tailored instructions. Where loss of performance results from the customer’s failure to follow those instructions, liability does not rest with the supplier. Expert testing must address the floor in its actual condition and, where relevant, compare that condition with a properly cleaned or degreased surface. A remedial scheme which substantially improves the property beyond what is reasonably necessary is not recoverable as remedial loss.

The claimant supplied and applied polyurethane sealant to three sports-hall floors operated by the defendant local authority. The defendant later alleged that the sealant was defective and had caused loss of slip resistance, closed the centres, undertook further works, and counterclaimed for lost profits and remedial costs.

The court considered whether the sealant and workmanship complied with BS 7044, whether the claimant had provided adequate maintenance advice, whether the defendant had followed that advice, the reliability of the expert testing, and the recoverability of the defendant’s claimed losses.

1. Liability and product conformity. The sealant complied with the relevant BS 7044 slip-resistance requirements when applied and remained stable. There was no evidence that the workmanship caused the loss of slip resistance.
2. Maintenance obligation. The claimant’s obligation extended beyond supplying a compliant surface. It had to provide reasonable maintenance advice enabling the floor to remain safe during the intended sports use. The advice given was clear, practical and tailored to the defendant’s resources.
3. Cause of the slipping. The defendant failed to establish that the sealant was unfit for purpose. The loss of slip resistance was caused wholly by inadequate and unco-ordinated cleaning, including the continued use of oil-based products, failure to remove accumulated grease and dirt, and insufficient mechanical cleaning. Proper compliance with the advised regime would have maintained a safe surface.
4. Expert evidence. The proper scientific approach was to test the floor as found and then compare the result after dusting or cleaning. Reliance on approximate Slip Alert readings as verification of pendulum readings was rejected. The closures may have been based on unreliable testing, although the defendant had been entitled to act cautiously on the advice received.
5. Counterclaim and relief. The defendant’s loss-of-profits claim was unsupported and its replacement flooring works constituted substantial betterment rather than reasonable remedial works. The claimant was entitled to restitution for services and materials supplied from 1 January 2005, with the amount to be agreed or assessed. The declaration sought was granted, the counterclaim was dismissed, and costs were ordered in favour of the claimant, subject to further argument on the basis of assessment.