Baxall Securities Ltd v Sheard Walshaw Partnership (A Firm)[QBD (TCC)]
| Jurisdiction | England & Wales |
| Judge | HHJ Bowsher |
| Judgment Date | 30 October 2000 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 30 October 2000 |
Queen's Bench Division (Technology and Construction Court).
HHJ Bowsher QC.
Alexander Nissen (instructed by Kennedys) for the claimants.
Louise Randall (instructed by Fishburn Morgan Cole) for the defendants.
The following cases were referred to in the judgment:
Anns v Merton London Borough CouncilELR [1978] AC 728.
Clark Care Group Ltd v Norman Hitchcox Partnership LtdUNK (1997) 56 Con LR 42; [1997] CILL 1301.
D & F Estates Ltd v Church Commissioners for EnglandELR [1989] AC 177.
Department of the Environment v Thomas Bates & Son LtdELR [1991] 1 AC 499.
Donoghue v StevensonELR [1932] AC 562.
Murphy v Brentwood District CouncilELR [1991] 1 AC 398.
Rich (Marc) v Bishop Rock MarineELR [1996] AC 211.
Rimmer v Liverpool City CouncilUNK [1984] 1 All ER 930.
Targett v Torfaen Borough CouncilUNK [1992] 3 All ER 27.
Tesco Stores Ltd v Norman Hitchcox Partnership LtdUNK (1997) 56 Con LR 42; [1997] CILL 1301.
Negligence — Duty of care — Architects — Building — Roof drainage — Flooding — Whether architects liable to subsequent occupier of building for flooding — Whether architects negligent in relation to design and construction of roof drainage — Cause of flooding — Whether duty of care owed in relation to defects which could have been discovered by reasonable inspection.
This was an action in tort by the occupier of industrial premises against the architects (“SWP”) retained in respect of the original construction of the building alleging that the architects were liable for damage caused to property other than the building itself by flooding when the roof drainage system failed to cope with heavy rainfall.
SWP were engaged by the developer of the building on RIBA terms. SWP acted as architects from 1989 to 1992. The detailed design of the roof drainage was carried out by a specialist subcontractor. The design involved a central valley gutter with outflows and overflows. The system was designed for a maximum rainfall intensity of 75mm per hour. The claimants occupied the building in 1995. Before they did so they instructed surveyors to inspect the building. In 1995 two floods through the roof of the building during heavy rain caused damage to the defendants' property inside. The claimants' case against SWP was based on their alleged negligence in approving a drainage system of insufficient capacity and failing to notice that the overflows had not been installed in accordance with specification. SWP argued that failure to keep the valley gutter clear was a cause of the flooding.
Held giving judgment for the claimants:
1. The roofing subcontractors selected a rainfall intensity criterion which was too low. SWP should have disapproved that rate and required a higher rate and was negligent in not doing so. SWP specified overflows and should have ensured by inspection that such overflows had been installed. SWP was negligent in failing to ensure that the specified overflows were installed.
2. The first flood was not caused by the under-design of the drainage system because the rainfall was probably of an intensity which fell within the design limits. The flood was caused by partial blockage of the valley gutter outlets and by the absence of overflows.
3. The rainfall leading to the second flood was in excess of the design criteria adopted but not in excess of the design criteria which ought to have been adopted. The gutter outlets had been cleaned only four days beforehand and were very unlikely to have been blocked. The second flood was caused by the combination of under-design and the absence of overflows.
4. A builder could owe a duty of care to a subsequent occupier in appropriate circumstances and so could an architect. (Murphy v Brentwood District CouncilELR[1991] 1 AC 398 considered.)
5. However it would not be fair, just or reasonable to impose a duty on SWP if the claimants had a reasonable opportunity of inspecting the drainage system and discovering the defects before the floods. Whether any inspection in fact revealed the defect which could have been discovered by inspection was irrelevant. Because there was a reasonable opportunity to inspect there was no relationship of proximity between the claimants and SWP in respect of any defects which could have been discovered. (Donoghue v StevensonELR[1932] AC 562 and Marc Rich v Bishop Rock MarineELR[1996] AC 211 applied.)
6. There was a reasonable opportunity of inspecting the building before the claimants took a lease and they had the building inspected by a surveyor as was usual. The surveyors should have informed the claimants of the lack of overflows and that overflows should be provided. The under-design of the system could not have been discovered by the claimants or their surveyors.
7. Therefore SWP was not liable for the first flood which was caused by the combination of blockages and the absence of overflows, for which SWP was not responsible, and to which the under-design was not a contributing cause. SWP was liable for the second flood since the under-design was a contributing cause. The claimants were not guilty of contributory negligence in relation to the second flood since the gutters had been cleaned and were not blocked.
HHJ Bowsher QC:
1. From 1995 onwards, the claimants jointly occupied an industrial unit in an industrial park at Bredbury, Stockport, Greater Manchester. One company was tenant and the other, an associated company, was a licensee of the other. The first claimants manufacture security systems and the second claimants distribute those systems. For the purpose of this action they are treated as one entity.
2. The building had been developed by Berisford Property Investments Ltd. That company employed the defendants, Sheard Walshaw Partnership, as architects. Though there have been other defendants to this action, they are now the sole remaining defendants, and I shall refer to them simply as “the defendants”. The defendants acted as architects from 1989 to December 1992 pursuant to a written agreement made on 16 February 1990. On 25 March 1991 the defendants certified practical completion; on 28 June 1991 they issued a certificate of making good defects; and on 3 December 1992 they gave the final certificate.
3. On 29 May 1995 and 4 September 1995, there were floods through the roof of the building causing damage to the property of the claimants. The floods occurred due to the inability of the drainage system to cope with heavy falls of rain on those days.
4. Initially, the claimants joined as defendants to this action in addition to the architects, the engineers employed on the project, the building contractor, and two specialist sub-contractors. By the beginning of the trial, all defendants other than the architects had dropped out of the action.
5. There being no contract between the claimants and the defendants, this action is brought in tort.
6. Damages are agreed, subject to liability, in the sum of £128,170.43 for the first flood and £612,153.02 for the second flood, totalling £740,323.45. The damages claimed do not include the cost of remedial works to the building. All the damages claimed are in respect of property other than the building itself. There is no claim for economic loss.
7. Unit 1, with which this action is concerned, is one of several buildings in the development built on a speculative basis for light industrial usage. It was not intended that the building should be occupied by the employers of the defendants. The building has a concrete floor and the walls and roof are supported by a steel frame. The walls have brick facing to about mid-height and have metal cladding above. The roof also has metal cladding. The roof is designed with twin pitches running lengthwise, the two pitches being separated at the inner eaves by a valley gutter. The building as a whole was described by one witness as being in effect a large shed, with a small space for an office for the occupants along one side, away from the valley gutter.
8. The intention was that storm water should drain from the roof partly into perimeter gutters and partly into the valley gutter. The floods in question went into the building from the valley gutter. This action has been concerned with the capacity of the valley gutter and possible obstructions to it. As with most houses in this country, any overflow from the perimeter gutters was directed outside the building, and provided overflows did not occur too often those overflows would be of little importance.
9. The valley gutter is made of metal with a flat base (laid to falls) and vertical sides. It was not practical to make a seal between the lip of the gutter and the underside of the metal roof cladding so that if the gutter over-filled, water would pour over the lip of the gutter into the building below. The valley gutter was made in sections, secured at the joins by metal bolts. In the base of the gutter were outlets leading to drain pipes to take the water away.
10. The expert witnesses are agreed that the valley gutter had a fundamental defect. It ought to have had, but did not have, overflows. If the drain outlets became blocked, or if a storm occurred that was heavier than any storm for which the drainage was designed, the overflows, if adequately designed, should take excess water away without damage to the building. One form of overflow would have been by wedge shaped cuts at the top of the ends of the gutter, known as weir overflows. In this building, weir overflows were impractical because the ends of the gutter were set against girders forming part of the steel frame. Another form of overflow would have been to have upstanding pipes at intervals along the gutter leading through the base of the gutter to overflow drains leading to the outside of the building. Overflows of this latter type would be on the same...
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