United Marine Aggregates Ltd v G.M.Welding & Engineering Ltd & Anor

In assessing reasonable care during hot work, the court must consider the operation, its known risks, the precautions adopted and the parties’ agreement. The mere fact that hot work caused a fire does not establish negligence. Where a knowledgeable client knew and approved the working method, an unforeseen deficiency in that method does not necessarily amount to a breach by the contractor. A fire-watch obligation is relevant to causation only if a fire should have been detected during the period in question. A condition precedent requiring combustible materials to be covered and protected imposes cumulative obligations; continuous water protection did not satisfy the requirement where part of the material remained unprotected.

United Marine Aggregates Ltd v G.M.Welding & Engineering Ltd & Anor concerned a serious fire at an aggregate processing plant. The claimant alleged that hot cutting and other work by the defendant contractor caused the fire. The contractor denied liability and sought an indemnity from its liability insurers. The insurers relied on a Burning and Welding Warranty expressed to be a condition precedent to liability.

The central issues were where the fire began, whether the contractor had breached contractual or tortious duties, and whether the warranty had been complied with.

1. The claim against the contractor failed. The fire began in the screening house, probably when molten steel spatter from oxy-propane cutting penetrated mastic above the rubber lining of the underpan and caused an initially undetectable smouldering fire. The contractor’s water protection and post-work checks were carried out with reasonable care.

2. Reasonable care was contextual. The precautions had been used repeatedly, were known to and approved by the claimant’s management, and reflected the claimant’s own hot-work procedures. The court rejected the suggestion that the occurrence of the fire itself proved negligent implementation of the system. The unusual mechanism by which the fire developed was not reasonably foreseeable.

3. The contractor was not liable for failing to maintain a fire watch exceeding about one hour after completion of the cutting. The evidence did not establish that a visible or reasonably detectable fire existed while the relevant fire watch was being kept. The principle discussed in Drake v Harbour [2008] EWCA Civ 25 could not establish causation without an established breach and facts showing that the fire must have arisen during the relevant period.

4. The court distinguished the inference discussed in Herrington v British Railways Board [1972] AC 877. The defendants had called evidence, and the circumstances did not justify inferring negligence merely from the failure to call one further witness.

5. The insurers’ claim concerning the warranty was academic but was decided. The warranty required combustible material which could not be moved to be both covered and protected by non-combustible material. Those requirements were cumulative. Because the mastic or lining was not continuously covered, paragraph 2 of the warranty was breached. No breach was established concerning fire extinguishers or the post-work fire watch.

6. United Marine Aggregates Ltd v G.M.Welding & Engineering Ltd & Anor’s claim was dismissed. The contractor’s indemnity claim against the insurers was also dismissed. Costs were to be addressed separately if not agreed.