New rules for the blame game

Contributory negligence is a clever little defence designed to avoid or reduce liability where it is proved that an injured party failed to take reasonable care of itself, so contributing to its own injury. A claim for damages can be reduced to what the court thinks is "just and equitable", taking into account the claimant's share of the blame.

Two fire-related construction cases address this issue. In December the Court of Appeal ruling in Sahib Foods Limited vs Paskin Kyriakides Sands was handed down (see Building 28 March 2003, page 52 and 4 April 2003, pages 46-47). The architect was found liable for damage caused by a fire in a food factory that had been started by the negligence of a factory employee but had spread because of the use of composite insulated panels. The architect had specified these panels because it had been told that the room would only be used for steam cooking. In fact, it contained a dirty great gas fat fryer. The fryer's operator had not read the instructions, and Sahib's negligence was made worse by the fact that the thermostat on it was broken and there was no maintenance contract. Yet the architect and its insurers, Norwich Union, took the knock for the entire £17m loss.

Architects gasped at the thought they could be forced to pay millions in compensation if they had specified CIP cladding and there was a fire. Why? It seems that the judge concluded that 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 deciding if it is reasonable to accept the client's assertions. It was held that the client's negligence was the sole cause of the fire within the room where it started, whereas the architect's negligence was the sole cause of the spread of the fire and the more extensive damage. So the judge found no contributory negligence for the largest part of the claim.

Surely, though, the architect could have relied on the assurances of Sahib, whose employee was supposedly an expert in the field, when it said that non-combustible panels would be fine? It appears not. The judge rejected the architect's case that the factory was in part at fault; he did not consider the factory's employee owed a duty to his employer and even less to the architects.

The Court of Appeal overruled Judge Bowsher on the contributory negligence point and found 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 own knowledge. The employee did owe 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 the architect's insurers the best part of £12m. The lesson here is that fault is a commonsense test. It should not now lead to blanket insurer condemnation of designers who specify CIPs in their designs.

At about the same time Six Continents Retail vs Carford Catering and Bristoll was decided on much the same point. This action concerned a stud wall, a rotisserie and a Harvester restaurant. 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.

The project manager had a contractual duty to check the fireproof condition of the stud wall and had failed to follow the rotisserie manufacturer's installation guidelines. Yet initially he got off the hook. Why? Because the project manager had sent his client a letter from the rotisserie manufacturers setting out their recommendations, which the restaurant had ignored. The Court of Appeal disagreed. It said the project manager's scope of obligations clearly extended to assessing the fire risk caused by the installation of the rotisserie. The letter was not a sufficient warning of the risk of fire.

There is a lesson here for buck-pass defences: don't lose sight of duty and fault and their contribution to loss. A sensible professional will warn of risks inherent in materials, but such a warning does not absolve them of all blame if it is their job to ensure all is well with the building.