| Date | 30 September 1998 |
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| Judgment | J Sainsbury Plc -v- Broadway Malyan and Ernest Green Partnership, ORB 31st July 1998 |
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| The Issue | Third party liability under the Civil Liability (Contribution) Act 1978. |
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| Implication |
General discussion of proportional responsibility of structural engineer and architect in relation to fire regulations. |
printThe Civil Liability (Contribution) Act 1978 provides as follows: "1.(1)…….any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage……. 1.(4) a person who has made or agreed to make any payment in bona fide settlement or compromise of any claim made against him in respect of any damage, shall be entitled to recover contribution in accordance with this section without regard to whether or not he himself is or ever was liable in respect of the damage, provided however, that he would have been liable assuming that the factual basis of the claim against him could be established. 2.(1)…..in any proceedings for contribution under section 1 above, the amount of contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage in question. These provisions were closely examined in the recent case between Sainsbury, Broadway Malyan and Ernest Green Partnership. Broadway were architects and Ernest Green structural engineers engaged by Sainsbury in connection with the construction of a supermarket in Chichester in 1984. In December 1993 the supermarket was destroyed by a fire started in the stores. Sainsbury claimed that the fire had spread to the sales area because Broadway had failed in its design to provide sufficient fire protection to the wall separating the two areas. Broadway in turn alleged in third party proceedings against Ernest Green that the latter was also liable to Sainsbury, as it had negligently failed to comment on Broadway's drawing showing the design for the protection of the structural steel work forming part of the wall. Dealing firstly with the question of liability, his Honour Judge Humphry Lloyd considered that this had been advanced on three fronts. Firstly, it was argued by Broadway that a lattice girder designed by Ernest Green was an element of structure for the purposes of Regulation E1(1) of the Building Regulations, and thus the structural engineers should have known that the girder ought to have been protected in order that it had two hour fire resistance. Judge Lloyd held that the lattice girder, although structural in nature, did not form part of the structural frame of the building as a whole, but of the roof structure only and as such was not to be defined as an element of structure for the purposes of Regulation E1(1). Whether or not that was a true analysis, Judge Lloyd held that in any event a structural engineer would not be negligent in failing to classify a girder of this type as falling within the requirements of that Regulation. Secondly it was argued that where the architect had changed the construction of the compartment wall at the height of the roof girder from blockwork to dry-lining, essentially at the request of the structural engineer, the engineer should have recognised that this rendered the girder a part of the compartment wall for the purpose of the fire regulations. Once again, Judge Lloyd held that it was not incumbent upon the structural engineer to look at the architect's proposals to determine whether a different treatment was now required for the girder. The engineer was not in breach of its duties to Sainsbury in not doing so. Finally, and of more general interest, Broadway argued that the submission of the relevant drawing to the structural engineer for comment placed an obligation of the engineer to warn of any deficiencies in regard to fire protection generally. Judge Lloyd considered that it was significant that the drawing was not sent for "approval", and that Broadway did not pursue Ernest Green for an answer on the point which it was now being said was the reason why the drawing was submitted. He concluded that the transmission of the drawing for comment did not place the structural engineer under any duty to Sainsbury to consider the architect's design for the fire protection of the girder. Accordingly the claim for contribution from the structural engineer was dismissed. Thus the matter might have ended there, but in order to introduce a finality to the proceedings, Judge Lloyd went on to consider the apportionment of liability which would exist in relation to the structural engineer, in case his finding on contribution was subsequently overturned. He noted that in cases where a building inspector had been negligent, the conventional approach was to attribute 75% responsibility to the builder and 25% to the local authority. Similarly, as between an architect and a clerk of works, the apportionment might be 80/20, on the basis that the clerk of works was an inspector acting under the architect's direction and control. Judge Lloyd considered that the role of the structural engineer in relation to the design of the fire protection of the compartment wall could not be regarded as higher than that of a building inspector or clerk of works. The structural engineer's negligence was essentially a failure to warn. It was required by the architect to comment, not to re-design. Given also that Broadway Malyan had failed to be specific as to the comments it sought upon its drawing and had failed to pursue the structural engineer for reply, this would reduce the apportionment to 12½% to the structural engineer and 87.5% to the architect.
CJ-9835
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