Sahib Foods Ltd v Paskin Kyriakides Sands (a firm) [2003] EWCA Civ 1832

Court of Appeal: 19 December 2003

In this case concerning an architect's design liability, the Court of Appeal has clarified the correct approach to be adopted when considering the application of s 1(1) of the Law Reform (Contributory Negligence) Act 1945.

Facts

The claimant ("Sahib"), the tenant of a food factory in Southall, had instructed the defendant architects to act in the refurbishment of the factory. The architects specified the use of steel faced polystyrene wall panels ("EPS panels") for the vegetable preparation area. At the time of the refurbishment in 1994:

• Sahib was made aware of the effect of fire on EPS panels in cooking areas and had attended a demonstration organised by specialist sub-contractors showing the effect of fire on such panels;
• Sahib knew that EPS panels were to be used for the vegetable preparation area and that if there was a fire there, it could spread to the rest of the building;
• Sahib took part in a risk assessment with the architects in which they had decided that the vegetable preparation area was a "low risk" area in terms of fire;
• A specialist sub-contractor had advised Sahib's production director that non-combustible panels should be used in cooking areas. Sahib's production director told the sub-contractor that the vegetable preparation room was only to be used for "steam cooking" and that satisfied the sub-contractor that non-combustible panels were not required in this area. Sahib's statement was both wrong and negligent: the room was also to be used for shallow frying, which carries with it a greater risk of fire than steam cooking;
• The architects had received a letter from the specialist sub-contractor expressing great concern that polystyrene core panels had been selected for use in areas where cooking or frying would take place.

In January 1998 a fire started in a "gas fired bratt pan" as a result of the following:

• Sahib negligently allowed their employees to use 100mm of oil in the gas heated bratt pan which was far in excess of that recommended by the manufacturers;
• Sahib's employee negligently left the gas on (in maximum condition) and did not turn off the gas supply or the pilot light at the end of his 14 hour shift;
• Sahib's supervisor negligently failed to check that the gas had been turned off;
• The thermostat on the pan was broken so that if the gas was left on, there was nothing to stop the oil heating to the point of combustion.

The fire spread from the pan to the adjacent wall panels and then destroyed the factory. Although the architects were plainly not responsible for the start of the fire, Sahib brought a claim for damages and interest totalling £27million on the basis that the architects had breached their duty to act as reasonable architects in connection with the refurbishment of the factory in 1994.

First Instance Decision

At first instance, the Court held the architects responsible for the majority of the damage caused by the fire on the basis that the architects had breached their duty of care by not guarding against the consequences of negligence on the part of Sahib. The architects knew or should have known that there was a risk of fire in the vegetable preparation room because they knew there was to be a "fryer" or a gas fired bratt pan in the room. The judge thought "any reasonable architect, like any reasonable householder, can be expected to know that frying, even in a household frying pan, may produce a fire."

Significantly, the judge also held that the specialist sub-contractor's letter to the architects, expressing concern at the use of EPS panels, should have been passed to the "highest authority" in Sahib with a specific recommendation that fire resistant panels be used in the vegetable preparation room. If fire resistant panels had been used, the fire would not have spread beyond the vegetable preparation room to burn down the whole factory.

Despite a concession by Sahib that damages should be reduced by 50% on account of their contributory negligence in starting the fire, the judge dealt with the issue as a matter of causation. He held that the proper way to identify the architect's responsibility was to assess (a) Sahib's total physical and consequential loss; (b) the total of such loss which would have occurred if the fire had been contained in the vegetable preparation room. The architect's liability in damages was the sum of (a) minus (b). The judge therefore allowed the claim and awarded damages to Sahib representing the large majority of the losses they had suffered from the fire.

The Appeal

The architects contended that the first instance judge had erred:

in holding that the architects had been negligent as alleged or at all; and

in refusing to reflect in the damages awarded Sahib's admitted fault in causing the fire, and in failing to hold that Sahib was also partly to blame for the spread of the fire.

The architects argued that both types of fault should have been reflected in an apportionment of damage under s 1(1) of the Law Reform (Contributory Negligence) Act 1945.

The architect's negligence

The Court of Appeal upheld the finding of negligence against the architects. The Court agreed that the risk assessment of the vegetable preparation room had been vague and that any proper risk assessment would have revealed what cooking processes were being carried out in that room. If the architects had carried out a proper risk assessment, they would have recommended the use of non-combustible panels and Sahib would have fitted such panels.

Importantly, the Court of Appeal said that the judge was entitled to hold that the warning letter from the specialist sub-contractor should have been passed by the architects to the highest authority in Sahib with a specific recommendation that fire resistant panels be used in the vegetable preparation room.

Approach to contributory negligence

The Court of Appeal decided that the judge had been wrong in his approach to contributory negligence. When considering contributory negligence, the correct question is to ask whether the case is one in which the claimant has suffered damage as the result partly of his own fault and partly of the fault of the defendant? If the answer to that question is yes, then damages have to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.

In determining whether the claimant's fault is causative of damage and, if it is, what is the relative blameworthiness and causative potency of the parties' respective fault, the Court of Appeal confirmed that it will be relevant to consider the scope of the defendant's duty and the extent to which that duty required the defendant to guard against the claimant's negligence. However, there is no rule preventing a claimant being guilty of contributory negligence even if the very purpose of the duty owed by the defendant was to guard against the loss suffered by the claimant. The duty of the defendant is only one of many factors to be weighed in determining whether the claimant has failed to take reasonable care for the safety of its person or property to an extent that makes it just and equitable to reduce damages that would otherwise be recoverable from the defendant. Whether or not it is appropriate to make a finding of contributory negligence and reduce damages on that account will depend on a factual investigation into the circumstances in each case. Here the Court of Appeal concluded that Sahib had been at fault in two relevant respects:

1. Sahib were solely responsible for the fact that the fire broke out. Their fault in causing the fire was one of the effective causes of the spread of the fire. It was Sahib's responsibility to take reasonable care to avoid a fire breaking out and it could not be said that they could or did rely on the architects in deciding what precautions to take to avoid a fire.
2. In addition Sahib were partly responsible for the failure to fit the fire resistant panels. During the refurbishment, their production director had failed to alert the specialist sub-contractor to the correct use of the vegetable preparation room. Had the sub-contractor known the correct use he would have pressed harder for the non-combustible panels to be used and his advice would have been followed.

Taking these factors into account, the Court of Appeal reduced by two-thirds the damages that otherwise would have been recoverable by Sahib from the architects.

This perhaps marks a return to the "rough and ready" approach to contributory negligence cases, whereby the total claim is reduced by a percentage amount to take into account the court's assessment of the claimant's relative responsibility for the damage.

In monetary terms, the Court of Appeal's judgment represents a significantly better outcome for the architects than the first instance decision because the Court of Appeal appears to have reduced the amount payable by the architects from the better part of £27 million to below £10m. However, the architects have retained a significant liability and one which appears to be higher than the £3m or £5m limit of professional indemnity policies commonly taken out by all bar the largest firms of design professionals.

Impact for consultants

The Court of Appeal's confirmation of the finding of negligence against the architects and the substantial amount for which they have been found liable reinforce the lessons to be learnt in relation to design liability. Architects and other design consultants wishing to avoid finding themselves in a similar position to Sahib's architects may like to take the following points from the case:

• Fulfilling statutory requirements, as the architects did here, does not mean that you have fully performed your duty to your client. When dealing with fire risks, you need to be concerned about the possibility of property damage as well as loss of life and personal injury.
• The fact that your client is as knowledgeable as you are will have no relevance if you fail to meet the standard of a reasonable competent professional exercising or professing to have your special skill.
• In the course of a risk assessment, do not assume that equipment will be used properly or only slightly misused. If the equipment in the vegetable preparation room had been only slightly misused, there would have been no fire. However, in the view of the potential consequences of a fire igniting the panels, the judge felt that the architects should have eliminated the possibility of circumstances likely to cause a fire igniting the panels, before deciding against the modest costs of using flameproof panels.
• If you receive a letter from a sub-contractor expressing serious concern about aspects of your design and recommending specific steps be taken to reduce a risk such as fire spreading, then consider amending your design and passing the letter on to the highest authority at the client with a specific statement telling them of the amendment you are making to your design and fully informing them of the costs implications. This is what the Court thought at first instance, and the Court of Appeal supported it.
• If you do not amend your design, get written confirmation from your client explicitly confirming that they accept the risk. It is not enough to simply pass on the sub-contractor's letter of warning to your client. You must impress on them the gravity of the risk.

For further information, please contact Sonia Tame at [email protected] or Sakina Rizvi at [email protected].