Pearson Education Ltd v Charter Partnership Ltd
| Jurisdiction | England & Wales |
| Judge | HH Judge Thornton QC,H Judge Thornton QC |
| Judgment Date | 10 October 2005 |
| Neutral Citation | [2005] EWHC 2021 (TCC) |
| Docket Number | Case No: HT-04–02 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 10 October 2005 |
[2005] EWHC 2021 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
HH Judge Thornton QC
Case No: HT-04–02
Mr Mark Pelling QC (instructed by Barlow Lyde & Gilbert, Beaufort House, 15 St Botolph Street, London, EC3A 7NJ, DX: 155 London CDE, Ref: 7550–36/TR/DJJ/3.05) for the Claimant
Mr Nicholas Dennys QC and Mr Mark Chennells (instructed by Mills & Reeve, 1 Court, Whitefriars, St James, Norwich, NR3 1RU, DX: 5210 Norwich, Ref:
ND/GJH/2019580–0026) for the Defendant
Hearing dates: 11, 12 & 19 July 2005
H Judge Thornton QC
Introduction
In these proceedings, the claimant ("PEL") claims damages from the defendant ("CPL") in respect of losses suffered by PEL when a warehouse premises, known as Unit 7000, Magna Park Industrial Estate, Lutterworth, Leicestershire flooded during a severe rain storm that occurred during the early evening of 30 July 2002. The warehouse was being used to store educational books published and distributed by PEL and the stock was severely damaged with the result that in excess of 2 million books were damaged or destroyed and over 1.7 million copies of books had to be reprinted at a cost in excess of £1.3 million. CPL was the firm of architects who designed the warehouse when it was constructed in 1989–1990. The cause of the flooding was the inadequate capacity of the drainage system to drain away rainwater gathering on the roof of the building so that excess water was discharged out of the valley gutters so that it poured through adjacent openings in the roof into the warehouse and its stock below.
CPL had overall responsibility for the design of the rainwater system and it carried out its design work in the period 1988–1989. PEL's complaint against CPL is that CPL designed a rainwater system which had a capacity to drain rainwater away that was less than the minimum capacity that the system should reasonably have had. PEL contends that had the system had that minimum capacity, the flood would not have occurred since the storm rainwater could have been drained away. PEL is the fourth lessee of the building and has no contractual relationship with CPL. It is, therefore, claiming damages from CPL in negligence, on the basis of an alleged Donaghue v Stevenson-type liability. It alleges that it was owed a duty of care by PEL when PEL carried out its design of the rainwater system. That design work was allegedly carried out without reasonable skill and care with the result that a faulty rainwater drainage system was installed. This faulty design is alleged to have been the direct cause of the flood and the resulting physical damage of its property.
The damages that are claimed are the cost of removing and replacing the damaged stock and the loss of profit on books that were destroyed but were not reprinted. Other heads of damage that are claimed include the cost of removing debris, dehumidifying the building and replacing computers. CPL alleges that some of the property damaged was owned by third parties and that the damages that are claimed for some of the heads of damage and for damage to third party property are irrecoverable even if liability is otherwise established for the physical damage to PEL's books.
CPL denies that it owed PEL any relevant duty of care but admits that it failed to perform its design services with reasonable skill and care. Thus, if CPL is found to have owed PEL a duty of care, CPL admits that it was in breach of that duty. It also admits that the agreed damages are recoverable but contends that any claim is barred by limitation.
The parties have agreed that the damages that are recoverable, if liability is established, are £2.1 million exclusive of interest. This is a global agreement covering all heads of claim. The agreement is to be welcomed. It does, however, obviate the need to determine which if any of the claimed heads of loss are irrecoverable in this type of case.
The issues that I must resolve, therefore, are whether CPL owed PEL a duty of care in relation to the agreed loss and damage that occurred, whether CPL caused that loss and whether, if it did, the resulting claim in the agreed sum is barred by limitation.
2. Background to Issues
Unit 7000, Magna Park
The premises comprised a large distribution warehouse located on an industrial estate in Leicestershire. The premises were steel framed and the internal floor dimensions measure approximately 135 metres by 140 metres. The roof comprised 4 double pitched roofs located behind perimeter parapets. The external height of the building to the top of the parapets was 20 metres and the internal height was 15 metres. Internally, the building was divided into two sections by a full height block work wall and there was a mezzanine level located along the north eastern wall. The main parts of the building were filled with extensive storage racking and distribution machinery.
This design means that the roof contains three valleys. A flat 113-metre length full length valley gutter was located along the bottom of each valley. The roof also contained two gutters enclosed by the boundary walls. Each pitch of the roof was made up by profiled or corrugated steel sheeting coated with a plastic-type material called Plastisol. This sheeting was laid over the steel frame members and the lower end of each sheet abutted one of the two gutter lips at an angle. If the gutter overflowed, water could pass out of the gutter, across the gutter lip and into the building through the inverted U-shaped spaces formed by the abutment of the underside of the corrugated sheeting. If water entered the building in this way, it would cascade down onto the stock, racks and floor spaces below. This type of roof opening, located close to the lip of a valley gutter, was a common and acceptable construction detail for this type of building.
Siphonic Rainwater Drainage Systems
The large three-pitched roof of Unit 7000 with its three valley and two parapet wall gutters required a sophisticated rainwater drainage system to take away rainwater falling onto its various pitched surfaces and then draining into its gutters. It is not difficult to drain the single pitched roofs of relatively small buildings since the rainwater can run down each of the two pitched roof surfaces into gutters located at the perimeter of the building. The gutters can then be drained by gravity action using conventional gravity drained rainwater down pipes that run down the outside faces of the building into an underground drainage system below ground level.
With multi-pitched roofs, with one or more valley gutters, rainwater running into the valley gutters can be drained by gravity action using rainwater down pipes located at each end of the gutter which can drain the accumulated rainwater to below ground level. However, this external method of gravity drainage is only possible where the valley gutter lengths are relatively short since otherwise the hydraulic gradient will be too high to enable all the rainwater accumulating during prolonged rainfall to drain into the rainwater down pipes. As a result, the valley gutters will overflow with the consequent risk of a discharge of this surplus water into the building.
For this reason, drainage of longer roof valleys traditionally involved placing rainwater down pipes at intervals along the gutter. These would run vertically downwards into and through the building to a drainage system installed underneath the floor slab. This method of drainage has two disadvantages. Firstly, it reduces the usable and lettable space within the building and, secondly, the cost of installation is substantial given the need to install an internal underground drainage system. Indeed, it is almost impossible to drain some very large industrial premises given both the considerable intrusion into the internal useable parts of a building and the lengthy internal gutter runs on the roof that would be required.
The difficulties caused in draining long valley gutters led to the development of siphonic rainwater drainage systems in the early 1980s. These systems enabled accumulated water to be drained from valley gutters in a way that does not reduce or affect the internal working space within the building. This is achieved because a siphonic system eliminates internal vertical rainwater pipes passing through the building from ceiling to floor level. Instead one down pipe or several down pipes are located at one end of the building into which all the gutter outlets drain at high level. These down pipes can be fixed unobtrusively to the inside end wall of the building. Rainwater outlets are positioned within each gutter and these outlets lead into a horizontal collector pipe strapped internally to the steel frame of the roof of the building. These collector pipes run parallel with the internal gutter and then lead down at a gradient into the vertical down pipes set against the end wall.
This siphonic method of drainage was installed to drain the gutters of Unit 7000. The siphonic method relies on siphonic action, so-called because the system works in the same way as a siphon. Thus, air is gradually eliminated from the system as it becomes charged. This elimination occurs because specially designed siphonic gutter outlets are set into the gutters which restrict air from entering the top of the pipe work system. Furthermore, the vertical pipes are made of a much smaller bore than is used for conventional rainwater pipes. The restricted outlets and smaller bore pipe work system cause air to be eliminated from the system when the gutter starts to fill with water. This causes the system rapidly to fill with water...
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