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An Architect's Duty
The Technology & Construction Court case of Sahib Foods
Limited (in Liquidation) and Co-operative Insurance Society Limited
–v- Paskin Kyriakides Sands, confirmed that when designing the
refurbishment of a factory an architect had a duty to guard his
employer against damage arising for the fault on the part of the
employer. The same case also outlined an alternative approach
towards apportionment of loss.
The facts
The First Claimant ("S") was the leaseholder and operator of a
factory producing chilled and frozen food. The Second Claimant
("C") was the beneficial owner of the freehold of the factory by
virtue of a contract to purchase the freehold. The Defendant ("P")
was a firm of architects.
In 1995 S refurbished its factory. Different cooking operations
took place in different parts of the factory, some involving deep
fat frying, others shallow frying of food.
As part of the refurbishment process areas of the factory where
deep fat fryers were used were sealed off from the rest of the
factory by use of non-combustible panels.
In a particular area of the factory, known as G49, cooking
equipment known as bratt pans were used for shallow frying. G49 was
separated from the rest of the factory by combustible, polystyrene
panels.
On 4 January 1998 a fire started in a bratt pan within G49 which
had been left unattended, containing oil, on a gas flame by a
member of S's staff. The fire spread through the polystyrene panels
and destroyed most of the factory.
The proceedings
S and C alleged that damage from the fire was caused at least in
part by P's negligence. P denied liability, not least on the basis
that it denied that a contract existed between it and S, and also
alleged contributory negligence against S.
The decision
The court was satisfied that the fire was caused by the
negligence of S and its employees in that:-
· An employee of S failed to turn off the gas supply or pilot
light at the end of his shift.
· In addition to being vicariously liable for the actions of its
employee, S was independently negligent for expecting its employee
to perform the task of switching off the gas supply and pilot at
the end of a 14-hour shift and for failure to properly supervise
its employee.
· S was also held liable for allowing the bratt pan to be used
with a depth of oil in it which exceeded the manufacturer's
recommendation and for permitting the use of a bratt pan with a
broken thermostat.
HHJ Bowsher also concluded that there was a contract between P
and S but went on to add that in any event P would have owed S a
duty of care in tort as occupiers of the premises and operators of
the business for which the works were designed and carried out.
The Judge held that whilst the fire may have started due to the
negligence of S or its employees P, in its design, should have
guarded against the consequences of any such negligence. P was held
to have been aware of the risk of using polystyrene panels in areas
where shallow frying was undertaken as a result of a letter sent by
the panel manufacturers to P, highlighting this concern, before the
refurbishment began. The Judge found that the area where the fire
began could have been protected in the same way as the area where
deep fat fryers were located by use of non-combustible materials,
which would have resulted in damage being limited to G49, the area
where it started, rather than spreading as it did to destroy most
of the factory.
The Judge gave judgment for S for damages to be assessed. The
basis of assessment of damages, the Judge indicated, was that all
losses attributable to the fire should be assessed in line with
liability for the destruction of G49 and consequential loss resting
solely with S but with P being solely liable for any physical or
any consequential loss resulting from the failure to contain the
fire within G49.
In relation to C's claim the Judge found that P did owe C a duty
of care as beneficial owner in respect of latent defects in the
building of which there is no possibility of inspection. However as
the Judge concluded that C had failed to call any evidence that the
duty owed to it had any relevance to the facts in this case, the
duty was irrelevant and C's claim failed.
Commentary
The most interesting and unusual aspect of the judgment in this
case is the approach adopted by the Judge in relation to causation
and contributory negligence. The Judge chose not to treat damage to
the factory as being indivisibly caused by a combination of S's
negligence in starting the fire and P's failure to ensure that the
fire was contained. The view the Judge adopted was that S's
negligence was the sole cause of the fire in G49 but that P's
negligence was the sole cause of the spread of the fire to the
whole factory. The Judge concluded that there was no contributory
negligence on S's part for by far the largest element of the
claim.
Whilst HHJ Bowsher refused permission to appeal P, perhaps
unsurprisingly, has indicated an intention to seek permission to
appeal from the Court of Appeal. The judgment, and the Judge's
approach on causation and contributory negligence, (the
ramifications of which could have serious consequences for
construction professionals engaged in design and their insurers),
remains, for the moment, susceptible to challenge.