Did you know that new copper tube will soon corrode if little or intermittently used?
Apparently it is vital that runs of water travel the new system, since that water flow builds up a protective layer of cuprous oxide on the inside of the pipe. If not, a layer of slime accumulates instead. That, says the experts, leads to pitting corrosion. So, like all things in this world, the first few months in life are critical. No formation of cuprous oxide means corrosion. The plumber was blamed and started to worry.
His first port of call was Keyline Builders Merchants. They had sold him the copper tube, so he wanted them to carry the can. Keyline passed the can to Building Metal Suppliers, the extruder of copper tube. Then the Venables called for the litigators because their plumber wouldn't pay for the work.
A couple of fundamental points went on trial in Venables vs Steven A Wardle & Others.
Now then, the ordinary rules when selling such things as pipes are that the seller implicitly says to the buyer, "these goods are of satisfactory quality as judged by a reasonable person taking account of the description, the price (if relevant) and the circumstances". The word "quality" means they will be fit for the purpose for which goods of that kind are commonly supplied; and when the buyer expressly or by implication makes known to the seller any particular purpose for which the goods are being bought, there is an implied term that the goods supplied under the contract are reasonably fit for that purpose, even if it is not the usual purpose – unless circumstances show that it is unreasonable for the buyer to rely on the skill or judgment of the seller. But the rules were not in dispute, nor was the fact that the copper had corroded.
The Venables called for the litigators because their plumber wouldn’t pay. A couple of fundamental points went on trial
Mr and Mrs Venables argued that the tubes were installed for their ordinary and normal purpose.
There was nothing abnormal or idiosyncratic about the use. The only feature that the defendants could point to was the little use of water in the early days following fixing. There was nothing out of the ordinary about that, said the Venables' barrister. Houses are often built and left empty for long periods of time with the water shut off. Holiday homes, for example, might not be occupied for months after construction. There must be thousands of homes like that. It was inevitable and irrelevant, said the claimant, that runs of copper tube in a large house would be unused and would retain stagnant water.
All this pointed to ordinary use of the pipes in everyday circumstances. But the plumber argued that the use was abnormal. And an independent expert in plumbing said that the problem was an extremely unusual one. Certainly corrosion had set in because of intermittent water use, which had prevented the build-up of the vital cuprous oxide.
The judge concluded that this was a misuse of the water system by the homeowners. The pipes themselves were fit for any dwelling, including those with intermittent use, but the Venables had taken to shutting off the water at the mains. Shutting off pipes that had not built up the protective lining was fatal. So, the Venables had misused them. Thus, they couldn't complain to their plumber, so no claim was available against the merchant or tube maker.
Tony Bingham is a barrister specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on firstname.lastname@example.org.