| Date | 18 February 2004 |
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| Judgment | Sahib Foods Limited v Paskin Kyriakidis Sands, CA 19 December 2003 |
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| The Issue | The assessment of damages where contributory negligence is found. |
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| Implication |
The design liability of an architect extends to guarding against a client's negligence, however the relevant fault of the parties should be taken into account in assessing contribution for damages. |
printIn January 1998 a fire destroyed most of a food factory in Brentwood, Southall. The factory was leased by Sahib Foods Ltd, who produced pre-prepared foods for sale to large supermarkets such as Tesco. The total loss as a result of the fire was of the order of £27 million. The fire had started in the vegetable preparation room of the factory, where a very large gas-fired bratt pan had been used to prepare aubergines by frying in cooking oil. The bratt pans were large open rectangular pans with sides far deeper than an ordinary frying pan. The cooking oil in the bratt pan was over 100mm deep. A Mr Singh had been in charge of the frying. He was an asylum seeker who could not speak English and who could not read safety instructions. On the day in question, he had worked 14 hours at the end of which he was responsible for turning off the gas supply to the bratt pan. He did not turn off the gas supply, or the pilot light, and the gas burners were left on in the maximum position. In hearing these matters at the first instance trial, Judge Bowsher commented that there may be many women who work hours like that in their own homes and kitchens, but Sahib would have to accept that it was not sensible to employ a man to work those hours and rely on him to perform an important task like turning off the gas at the end of the day. The judge also concluded that Sahib was negligent in allowing the gas-fired bratt pan to be used with a depth of oil far in excess of that recommended by the manufacturers. Moreover, a supervisor or the night shift staff should have been able to prevent the fire, but they did not arrive on the scene until after the fire had started. Sahib was also negligent in that the bratt pan was fitted with a thermostatically controlled switch, but on the day in question, and probably for some time earlier, the thermostat was broken. Despite all of these findings, and despite that Sahib had conceded at the trial that it was guilty of contributory negligence of the order of 50%, Judge Bowsher concluded that Sahib was not responsible for the destruction of the factory as a whole. In his view, although Sahib was responsible for initiating the fire, it was not responsible for the spread of the fire throughout the factory. That responsibility should instead pass to a firm of architects, Paskin Kyriakides Sands, who had been engaged by Sahib some four years earlier to design refurbishment works within the factory. Judge Bowsher held that the architects, Paskin, were in breach of duty in that they had failed to advise Sahib at the time of the refurbishment to fit fire resistant panels in the vegetable preparation room. If they had, Sahib would have fitted such panels and in the event, the factory would not have burned down. In arriving at that conclusion, Judge Bowsher had been particularly influenced by evidence given during the trial that a specialist partitioning subcontractor had written to Paskin advising them that, in areas where cooking or frying would take place, including the vegetable preparation room, there should be fire resistant panels which would enclose any fire within the room for a period of up to two hours. Paskin had apparently ignored that advice and continued to specify polystyrene core panels, which it should have known were entirely unsuitable. Moreover, Paskin failed to recommend fire resisting doors or automatic shutters for the vegetable preparation area and fire dampers within the ventilation ducts. It is worth noting that, despite all of this, the premises had a fire certificate and there was no evidence that there was a breach of the relevant building regulations. The building regulations and the fire certificate are intended to prevent danger to persons, not damage to property. Judge Bowsher concluded that it was the duty of Paskin to ascertain what cooking activities were to be carried out in the vegetable preparation room and elsewhere, and what risks of fire there were as a result. It was incumbent upon them before deciding whether to advise Sahib to use non-fire rated panelling to satisfy themselves that the cooking operations in the room concerned were such that there was no significant risk of the spread of fire. Judge Bowsher concluded that whilst Sahib was responsible for the destruction of the vegetable preparation area and any consequential loss that might have flowed if that had been the only damage, Paskin was wholly responsible for any physical and consequential loss resulting from the failure to contain the fire within that area. Paskin was therefore to be held liable for the majority of the damage to the factory. This decision was taken to the Court of Appeal where it was concluded that Judge Bowsher was wrong in his decision concerning the parties' respective contribution for loss. Lord Justice Clark remarked that the question was simply whether Sahib had suffered damage partly as a result of its own fault. The evidence lead inevitably to the conclusion that Sahib was partly at fault for the spread of the fire. It was also Sahib's responsibility to take reasonable care to avoid a fire breaking out. On the evidence, both Sahib and Paskin were responsible for the failure to fit fire-resistant panels. Taking account of all those factors, the Court of Appeal allowed the appeal by Paskin and concluded that the damages recoverable by Sahib should be reduced by two-thirds.
CJ-0407
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