Re-Source America International Ltd v Platt Site Services Ltd and Another

JurisdictionEngland & Wales
JudgeLord Justice Tuckey,Lord Justice Brooke,Lord Justice Laws
Judgment Date28 May 2004
Neutral Citation[2004] EWCA Civ 665
Docket NumberCase No: A1/2003/1772 QBENF
CourtCourt of Appeal (Civil Division)
Date28 May 2004
Between:
Re-Source America International Ltd.
Claimant
and
Platt Site Services Ltd. & Anr
Defendant/Respondent
and
Barkin Construction Ltd
Part 20 Defendant/Appellant

[2004] EWCA Civ 665

[2003] EWHC 1142 (TCC)

Before:

Lord Justice Brooke

Vice President of The Court of Appeal (Civil Division)

Lord Justice Tuckey

Lord Justice Laws

Case No: A1/2003/1772 QBENF

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM TECHNOLOGY AND CONSTRUCTION COURT

HIS HONOUR JUDGE THORNTON Q.C.

Royal Courts of Justice

Strand,

London, WC2A 2LL

Bernard LIVESEY Q.C. and Mark CANNON (instructed by Fox Hartley) for the Appellant

Robert MOXON-BROWNE Q.C. (instructed by Watmores) for the Respondent

Lord Justice Tuckey
1

On 15 May 2001 a warehouse on the Deeside Industrial Estate was seriously damaged by fire. The claimant, Re-source America International Ltd., was a licensee of part of the warehouse in which it stored and refurbished combustible materials for use in the semi-conductor business. Re-source claimed over £1m. for damage to its property and consequential losses caused by the fire against Platt Site Services Ltd. Platt was employed as a sub-sub-contractor to carry out the steelwork involved in the construction of an addition to the warehouse and it was Platt's hotwork (grinding, welding and cutting) which started the fire. Platt joined the main contractors, Barkin Construction Ltd. as Part 20 defendants. On a trial of liability in the Technology and Construction Court His Honour Judge Thornton Q.C. found that Platt was liable to Re-source but entitled to be fully indemnified by Barkin. He found that Platt had been negligent but also that it was strictly liable for the fire under the rule in Rylands v Fletcher and the doctrine of Ignis Suus and that it was vicariously liable for Barkin's negligence. He found Barkin contractually liable to indemnify Platt under the terms of a letter of 3 May 2001, alternatively that it should make 100% contribution to Re-source's claim as a joint tortfeasor.

2

Barkin sought permission to appeal a host of the judge's findings of fact. Thomas L.J. granted permission to appeal one such finding which I will identify later. Buxton L.J. granted Barkin permission to appeal a number of issues of law, some of which, as I shall explain, are not in issue. The ones that matter are that the judge found Platt liable in negligence to Re-source and Barkin liable to Platt on grounds which were not pleaded and that he was wrong to find that Barkin was liable to Platt under the letter of indemnity or to make 100% contribution.

3

The trial took three days. The judge delivered a long judgment after six months. The judge's unexplained delay in giving the judgment is regrettable. No complaint is made of the delay as such, but it is said to explain why the judge made a number of unnecessary and erroneous findings. The hearing before us has focused rather more on the conduct of the trial than could be anticipated from the notice of appeal and I shall have to refer to this to deal with points made by Mr Livesey Q.C. for Barkin, who did not appear below.

4

The judge's judgment is reported at [2003] EWHC 1142 (TCC) to which anyone wishing to see a full account of the facts may refer. I only propose to refer to those necessary for the purpose of deciding this appeal.

5

The contract for the construction of the warehouse addition was made between the building owner and Barkin on one of the JCT forms. A similar steel-framed building was to be constructed alongside the existing building. The new steelwork structure was to be tied into the existing structure by horizontal stanchions bolted onto the existing vertical steel stanchions at eaves level. The way in which this was to be done required the existing horizontal channel running between the stanchions to be re-fixed to the top of each stanchion by means of angle irons welded either side of the stanchion to enable the old fixing and part of the channel to be cut away by flame cutting from the external face of the stanchion. Barkin subcontracted the fabrication and erection of the steel work to Henry Smith (Construction Engineers) Ltd. (HSW). HSW in turn sub-contracted this work to Platt by their order of 17 April 2001.

6

Health & Safety Regulations, guidance notes and codes of practice designed to create a structured method of identifying and avoiding risk applied to this project. The employer is required to appoint a planning supervisor and a principal contractor. For this project consulting engineers were appointed as the planning supervisor and Barkin was appointed as the principal contractor. The principal contractor is responsible for ensuring that risk assessments are made and methods statements prepared for all hazardous work before any such work is carried out. The judge said:

In summary, there was a contractual requirement imposed on Barkin to ensure that it prepared a risk analysis which analysed all risks associated … and with the cutting, grinding, welding and drilling work at high level in confined conditions with inflammable materials stored at high level in close proximity to this work and with the adjacent occupied area continuing to be used and worked in by those undertaking Re-source's on-going work. There was also a contractual requirement imposed on Barkin to ensure that appropriate method statements were prepared by either Barkin or Henry Smith covering the safe … cutting and welding work and which made provision, in conformity with HSE requirements, for the means of access to the hotwork in question and for all site precautions and measures needed to remove the risks that had been analysed in the relevant risk assessments. These method statements were not only to be prepared but had to be discussed with, and copies provided to, each contractor associated with this work, the Planning Supervisor and the site-based Health and Safety File. The necessary method statements would have to be available and included within the Health and Safety File at least two weeks before any hotwork was to start on site. They would need to take into account the advice and recommended precautions contained in the relevant HSE publications.

7

In the event these procedures were only followed in the most general terms. HSW prepared a risk assessment and method statement dated 14 March 2001 at which time they understood that the work to the stanchions in the part of the warehouse occupied by Re-source would be carried out after all the stock had been removed from it. The work would be done in the same way as that to the stanchions in the unoccupied part of the building from scissor lifts (cherry pickers) inside and outside (via holes to be cut in the cladding) of the building. However, by 23 April, when Platt arrived on the site, Barkin and HSW had agreed that Re-source's entire stock would not be removed: a 30 foot strip along the side of the building would be cleared of the stacks of plastic spools, drums and pallets stored there. This would reduce the fire risk and give access to the cherry picker. The adjoining stacks would be "barried" off and covered with fire protective materials.

8

Unfortunately no-one had previously discussed this plan with Re-source. When its manager, Mr Whitby, was informed of the plan on 27 April he said that he would not allow welders into his part of the warehouse because he had not seen the necessary risk assessments, method statements and safety equipment. Its stock could not be moved quickly and he would not be able to discuss the matter further until after he had returned from holiday on 10 May.

9

Barkin's managing director, Mr Andrews, was very put out by Mr Whitby's response which, as the judge found, had been perfectly reasonable. After unsuccessfully attempting to enlist the support of the building owner, he decided to carry out the work immediately with a view to its being completed before Mr Whitby returned from holiday. To this end he called a meeting on 2 May attended by Platt's principal, Mr Platt, and HSW. At this meeting Mr Andrews proposed that the hotwork to the existing stanchions should be carried out from the outside via larger holes in the cladding through which the bucket of the cherry picker could enter the building. The working area would be enclosed in a cocoon or shroud wrapped around the stanchion and fixed to the sides of the hole comprising an outer tarpaulin layer and an inner layer made of two welding blankets laced together. He personally would install the shroud at each stanchion with the assistance as necessary of the cladding sub-contractor. Platt's case, which the judge accepted, was that Mr Andrews said he would also provide a fire watch within the building whilst hotwork was being carried out.

10

Mr Platt, who was a very experienced steelworker, was very concerned with the safety of Mr Andrews' proposals. He said he would not be prepared to allow Platt to undertake the hotwork unless Barkin provided Platt with a written "damage waiver". Mr Andrews, who was desperate to get the work started, agreed. On the following day he wrote to Platt saying:

Please accept this letter as indemnity to yourselves against the site works as discussed, associated with the occupied part of the building.

You are to ensure fire blankets are used for protection of internal stock, together with a secondary tarpaulin. We do, however, appreciate this will be a difficult job and any damage to the tenants stock will be covered by our insurance.

This is the indemnity upon which Platt succeeded.

11

The hotwork to the stanchions in the unoccupied part of the warehouse and the first 12 of the 13 stanchions in Re-source's part of the...

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