Hot potato

A recent run of cases in which issues of contributory negligence of the client, consultants, employees, firemen and yes, even vicars, promotes my piece.

Let me remind you what is meant by the doctrine of contributory negligence. It is actually a rather clever little defence established to avoid or reduce liability where it is proved that an injured party failed to take reasonable care of itself, therefore contributing to its own injury. This law is underwritten by a statute which stipulates that a claim in respect of ‘damage’ is reduced to such an extent as the court thinks “just and equitable” having regard to the claimant’s share of the damage. So it admits a vaporous quality common of our law. By the way, ‘damage’ includes both bodily and the hole in the pocket variety.

I address two fire-related construction cases. The first concerns in part composite insulated panels (CIP’s). Over the last couple of decades there has been a tremendous increase in the use of CIP’s for buildings as opposed to traditional bricks, blocks and mortar construction. Superstores, factories, warehouses, schools, prisons, hospitals and leisure facilities include these so-called ‘sandwich panels’ both for internal and external cladding. There have also been some sorry tales when they have been exposed to fire.

In December, the Court of Appeal ruling in Sahib Foods Limited v Paskin Kyriakides Sands⁽¹⁾ was handed down. Some may recall, here an architect was found liable for damage caused by a fire in a food factory initiated by the negligence of an employee of the factory owner and further exacerbated by the installation of what turned out to be CIP’s. On enquiry from the architect of type of use for the room, the factory had averred that the food cooking room was only to be used for steam appliances. In fact, it contained a dirty great gas fat fryer. The employee operating the fryer instructions had not read the instructions, he could not speak English, and Sahib’s negligence was further compounded by the fact that the thermostat on the fryer was broken and there was no maintenance contract on the apparatus. Yet the poor architect and its insurers, Norwich Union, took the knock for the entire £17 million loss.

Not surprisingly, architects gasped at the thought they could be forced to pay millions in compensation if found liable for fire damage if they specified CIP cladding. Why? It seems the Judge was firmly of the view that, at the material time, the architect should have had regard for the risk of fire spread and the easy availability of non-combustible panels in the cooking areas. The duty of care extends to examining the circumstances, to see if it is reasonable to accept the client's remarks. Where a caution had been expressed by specialist contractors, that should have been passed on by the architect with specific guidance being given as to the required amendment of the architect’s specification with the costs implications fully described. He held that the factory’s negligence was the sole cause of the fire within the particular kitchen where it started, while the architect’s negligence was the sole cause of the spread of the fire and the more extensive damage. Accordingly he found no contributory negligence at all in respect of what was by far the largest part of the claim.

Surely though, Paskin could have relied on the assurances of Sahib, whose employee was supposedly an expert in the field, when he said that non-combustible panels would be fine. It appears not. He so found, notwithstanding Sahib Foods’⁽²⁾ concession at trial it was 50% guilty of contributory negligence. You might think this odd. You would be right. Yet the Judge rejected the architect’s case that Sahib was in part at fault, as the Judge did not consider Sahib’s employee owed a duty to his employer and even less to the architect.

The Court of Appeal overruled Judge Bowsher on the contributory negligence point. They said the central question of fact was simply whether Sahib had suffered damage partly by reason of its own fault. It was irrelevant whether Sahib owed the architect a legal duty to use its knowledge of the use or kitchen layout. The Court of Appeal held that the employee owed a duty of care to its employer to take care in answering the architect’s questions as to the use of the room. But for this error, the correct type of panels would have been specified and the fire would not have spread. Sahib Foods was found to be contributorily negligent for two-thirds of the total loss and had to repay to the architect’s insurers the best part of £12 million.

The lesson here is that fault is a commonsensical test. It should not now lead to insurer condemnation of designers who specify highly proficient CIP’s in their designs. But, for the design community, fire compartmentalisation is overlooked at your peril. The potential liability of contractors and building professionals who have so specified the use of CIPs inappropriately has been a matter of legal debate for some time.

At about the same time Sahib was before their Lord Justices, the Court of Appeal considered Six Continents Retail v Carford Catering Limited and Bristoll Limited. This action concerned a stud wall, a rotisserie and a Harvester restaurant. You can guess, perhaps, what happened. There was a fire from the rotisserie and the lot went up in smoke. The project manager was sued and the rotisserie manufacturer was dragged in also. The Judge found that the project manager had a contractual duty to check the fireproof condition of the stud wall. He was found in breach of contract by failing to comply with his obligations to take proper and appropriate steps. He had failed his client in not following the rotisserie manufacturer’s installation guidelines but got off the hook because the project manager had sent his client a letter from the rotisserie manufacturer setting out its recommendations which the restaurant had not followed. The employer was surprisingly found 100% contributorily negligent.

The Court of Appeal disagreed. It pointed out that the real question was whether, on the facts, the project manager was liable for loss suffered. The Appeal Court held that the project manager’s scope of obligations extended to assessing the fire risk caused by the installation of the rotisserie. Even if the letter to the client setting out the recommendations constituted a warning of risk of fire, it was a warning of an outcome, which the project manager ought to have prevented. The letter was not a sufficient warning to the client of risk of fire since it solicited advice from the client. The court said the Judge was wrong to have found that the chain of causation had been broken by contributory negligence of the restaurant. So the PM took a hit after all on the appeal. There is a lesson here for buck pass defences - do not lose sight of duty and fault and its obvious contribution to the loss.

You may think the law has gone mad, but these cases show that the subject of “contrib” is rather an important one – it is both a stick and safety net.