Sahib Foods Ltd ((in Liquidation)) v Paskin Kyriakides Sands (A Firm)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Clarke,LORD JUSTICE CLARKE |
| Judgment Date | 19 December 2003 |
| Neutral Citation | [2003] EWCA Civ 1920,[2003] EWCA Civ 1832 |
| Docket Number | A1/2003/0582,Case No: A1/2003/0582 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 December 2003 |
[2003] EWCA Civ 1832
Lord Justice Ward
Lord Justice Potter and
Lord Justice Clarke
Case No: A1/2003/0582
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
His Honour Judge Bowsher QC
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr Justin Fenwick QC and Mr Charles Manzoni (instructed by Fishburns) for the Appellants
Mr Jeremy Stuart-Smith QC and Mr Geoffrey Brown (instructed by Greenwoods)for the Respondent
Introduction
This is the judgment of the court. On the night of 4 January 1998 a fire destroyed most of a food factory in Brent Road in Southall. At the time of the fire Sahib Foods Ltd ("Sahib") was the lessee of the building and Co-operative Insurance Co Ltd ("Co-op") was the owner of the freehold. The fire started in oil in a gas bratt pan in room G49. His Honour Judge Bowsher QC ("the judge") held that the fire was caused by the fault of Sahib. He further held that the spread of the fire outside room G49 was due to breach of contract and duty on the part of Paskin Kyriades Sands ("PKS"), who are a firm of architects. The total loss as a result of the fire was said to be some £27 million inclusive of interest.
The trial which has given rise to the appeal was concerned only with liability. Before the judge there were issues as to whether there was a contract between Sahib and PKS and as to whether PKS owed Sahib a duty to exercise reasonable care and skill as architects. The judge resolved both those issues in favour of Sahib and PKS do not challenge that part of his decision in this appeal.
The judge held that PKS were in breach of contract and duty in that they failed to exercise reasonable care and skill in order to prevent the spread of any fire in room G49 outside it. Although Sahib conceded at the trial that it was guilty of contributory negligence of the order of 50 per cent, the judge held that there was no relevant contributory negligence, essentially because, although Sahib was responsible for the fire, PKS was solely responsible for the spread of the fire. In this appeal PKS say that the judge was wrong to hold that they were negligent or in breach of contract as alleged or at all. Alternatively, they say that, if they are in principle liable to Sahib, the judge erred in two respects with regard to contributory negligence. First, they say that he was wrong to refuse to reflect Sahib's admitted fault in causing the fire and secondly, they say that he ought to have held that Sahib was also partly to blame for the spread of the fire and to have reflected both types of fault in an apportionment of damage under section 1 of the Law Reform (Contributory Negligence) Act 1945 ("the 1945 Act").
The Fire
There is no issue as to the cause of the fire. It started in room G49, which was in what was known as the veg prep cook area of the factory. There were three bratt pans in room G49, two of which were heated by steam and one by gas. The bratt pans in question were large, open, rectangular pans with sides far deeper than an ordinary frying pan, installed at waist height, each being on a sub-structure standing clear of the walls. The gas bratt pan was heated by gas jets within the sub-structure beneath the pan. Its dimensions were 650 mm x 730 mm x 250 mm deep. On the night of 4 January 1998 a Mr Singh was frying aubergines in the gas bratt pan. The thermostat was broken. When Mr Singh had finished frying the aubergines he left the pan on the heat, empty except for the remaining oil, without turning the gas off. The oil in the pan continued to heat up until it reached its flashpoint of about 320°C and caught fire.
The causes of the fire and its subsequent spread were agreed by the fire experts instructed by the parties. They were Dr Neil Sanders of Burgoynes, who was called by Sahib, and Dr John Bland, who was called by PSK. The following points of agreement and disagreement between them are relevant to the issues in the appeal:
i) It is unlikely that ignition occurred within less than about one hour from the end of cooking at a nominal temperature of 180°C.
ii) In any of the following events the fire would not have occurred:
a) if the bratt pan had been switched off immediately after the appliance was last used or at the end of the shift;
b) if the bratt pan thermostat had been functioning correctly and had been correctly located at the time of the fire; and
c) if the bratt pan had been fitted with an overheat limit thermostat which was functioning correctly and correctly located.
iii) The bratt pan was about 600 mm from the side wall, which was constructed of EPS panels, which were not fire resistant.
iv) It was Dr Sanders' view that the panels would probably have ignited in about 3.5 minutes and ignition may have occurred more quickly. Dr Bland believed that ignition would probably not have occurred in less than 3.5 minutes, whereafter there would have been an increasing risk of ignition. This difference between the experts is not significant in the context of the issues between the parties.
v) At an agreed burn rate of 1.75 mm per minute, an oil depth of about 6 mm would take about 3.5 minutes to burn.
vi) If the veg prep cook enclosure in room G49 had been constructed as a 'fire compartment' capable of containing a fire for one hour, the fire would not have spread outside room G49.
vii) G49 was not so constructed. The main features of such an enclosure would have been walls and ceilings constructed from non-combustible panels (such as mineral wool), fire resisting doors or automatic shutters of the appropriate specification and automatic fire shutters in the ventilation ducts where they crossed to other areas of the factory.
viii) There was no evidence that there was a breach of the relevant Building Regulations. The premises had a Fire Certificate, although both the relevant parts of the Building Regulations and the Fire Certificate were intended to prevent danger to persons, not damage to property.
The judge held that it followed from the evidence of the fire experts that if oil of a depth of 1 or 2 mm in the gas bratt pan had caught fire, the wall panels of the veg prep area would not have ignited but that, if a minimum of 6 mm or possibly 8 mm of oil had caught fire, the wall panels of the veg prep area would have ignited. Those conclusions are not challenged. Nor is the judge's further conclusion, based on the expert evidence, that at the time of the fire the level of oil in the bratt pan was about 100 mm.
The judge also held that it followed from the expert evidence that, if the veg prep area had been protected by non-combustible panels, then despite the concurrence of a number of negligent acts and omissions on the part of Sahib which caused the fire, the factory would not have burnt down. Thus, if the panels which were ultimately used in the deep frying room had been used, the fire would not have spread to the factory and burned it down but would have been contained in room G49.
It was not in dispute that Sahib was seriously at fault for causing the fire. The judge expressed his conclusions in this regard as follows in the relevant parts of paragraph 22 of his judgment:
"(a) …
(b) Sahib employed as the operator of the gas fired bratt pan Mr. Gurcharan Singh, an asylum seeker who could not speak English. On the day in question, he worked from 6 a.m. until 8 p.m. At the end of the day, he was responsible for turning off the gas supply to the bratt pan. There may be many women who work hours like that in their own homes and kitchens, but Mr. Reynolds [see below] agreed that it was not sensible to employ a man to work those hours and rely on him to perform an important task like turning off the gas at the end of the day. Mr. Singh did not turn off the gas supply or the pilot light. The gas burners were left on in the maximum position. In that failure, Mr. Singh was negligent, though in the circumstances one could only sympathise with him if he were here to accept that sympathy. His employers, Sahib, were not only vicariously liable for his negligence, they were independently negligent for relying on him to perform a responsible (though simple) task after working such long hours. It is true that his supervisor ought to have checked, and Sahib are vicariously liable for his failure also.
(c) Sahib were also negligent in allowing the gas fired bratt pan to be used with a depth of oil far in excess of that recommended by the manufacturers. Mr. Singh told Dr. Sanders of Dr. J.H.Burgoyne and Partners, through an interpreter, that he left cooking oil in the pan to a depth of about 50 to 100 mm. Dr. Sanders and another fire expert, Dr. Bland, agree that burn marks on the inside of the pan show that the pan had contained oil to a depth of 100 mm when the oil ignited. The evidence of Mr. Reynolds is that the night shift should have come on at 10.00 pm to clean the pan and its surroundings. However, before they arrived, the fire had started.
(d) The gas fired bratt pan was designed to be fitted with a thermostat controlled by a revolving switch to control the temperature of oil in the pan. On the day in question, and probably for some time earlier, the thermostat was broken, and if the gas was left on (as it was) there was nothing to stop the temperature of the oil rising until combustion took place. In the opinion of Dr. Sanders, that is what happened. There was no maintenance contract for the gas fired bratt pan. I have no evidence whether the broken...
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