The liability smokescreen that could be a cause for alarm
Last year the case of Sahib v Paskin Kyriakides Sands (PKS) sent ripples of alarm through the architectural profession. PKS was found to be solely responsible for the spread of a fire through a food factory.The fire started in a large frying pan in a vegetable preparation room.Shortly before Christmas, the Court of Appeal reviewed this decision and, having decided that Sahib had in part caused its own loss, reduced the damages payable by PKS to one-third of what had originally been ordered.
In a second case, this time involving a fire in a restaurant, the Court of Appeal last November reviewed the decision in Six Continents Retail v Carford Catering. Carford, the project manager, had been found not liable for a fire caused by a rotisserie fixed to a timber stud partition. The judge at first instance found that the employer's contributory negligence had been 'overwhelming'. The Court of Appeal disagreed, and found the project manager liable.
These decisions show that it is not always immediately clear who might be liable, and for what, on any given set of facts. Although these decisions are very fact-sensitive, it is instructive to look at them for what they tell us about the duties that were found to be owed, how those duties might have been discharged, and how liability may be displaced by the conduct of others.
In Six Continents, Carford had arranged for the installation of the rotisserie on the stud wall, which was faced with tiled plywood. The installation instructions said that under no circumstances should the unit be fixed directly to a combustible surface.
There was subsequently a problem with the heat distribution of the unit.The visiting engineer suggested to Carford that the installation of a stainless steel sheet at the back of the unit as a fire protection measure might be advisable. Carford passed this information onto Six Continents, who owned and operated the restaurant. Carford asked 'what action, if any' they were instructed to take. In the event, no further preventative action seems to have been taken before a fire started in the stud wall on which the rotisserie was hung.
The judge at first instance decided that Carford was in breach of its obligations to Six Continents by not making sure that the rotisserie was installed in accordance with the manufacturer's instructions. However, she went on to find that the true cause of the fire was Six Continents' failure to respond to Carford's request for instructions.
The Court of Appeal found that Carford's letter did not absolve them. For the warning in the letter to have been clear, it should have drawn attention to the underlying problem that the unit was fixed to a combustible surface; in other words, it should have pointed out Carford's own breach. It did not.The fire was Carford's fault, and was not contributed to by Six Continents.
As for Sahib, the judge at first instance found that Sahib had not contributed to its own loss, despite the fire having been started by its negligence. He decided that had PKS specified appropriate panels, the fire would have been contained, and the factory would not have been lost.
The Court of Appeal took a somewhat broader view. They held that Sahib had contributed to its own loss in two ways.
First, it was Sahib's responsibility to take reasonable care to stop a fire from breaking out. Second, Sahib had wrongly told the panel manufacturer that the room where the fire started was only to be used for steam cooking. Had the panel manufacturer been told there was to be frying, they would have recommended the use of fire-resistant panels, which would have prevented the spread of the fire.
However, it was PKS's duty to ascertain what cooking activities were to be carried out in each room, and to assess the consequential risk of fire spread. PKS had a data sheet for the room that showed that it was to contain a fryer. Had PKS made further enquiries, it would have discovered the true position and advised that fire-resistant panels be used.
It followed that there were three causes of the loss, that Sahib started the fire, and that Sahib and PKS had failed to make sure appropriate panels were used.