Sahib Foods Ltd v Paskin Kyriakides Sands (a firm)

An architect responsible for refurbishing premises must take reasonable steps to ascertain the activities carried on in areas where cooking occurs and assess the resulting fire risk before specifying combustible wall panels. The duty extends to guarding against the consequences of negligent conduct by the occupier or its employees, but that does not automatically exclude contributory negligence.

Under section 1(1) of the Law Reform (Contributory Negligence) Act 1945, the question is whether the claimant’s own fault partly caused the damage. The defendant’s duty is relevant to causation, blameworthiness, causative potency and the just and equitable reduction, but is not conclusive. A claimant may therefore be contributorily negligent both in causing the fire and in contributing to the failure to contain it.

A fire destroyed most of a food factory leased by Sahib Foods Ltd and owned by Co-operative Insurance Co Ltd. The fire began when oil left heating in a gas bratt pan ignited. The trial judge held that Sahib had caused the fire through serious negligence, but that Paskin Kyriakides Sands, the architects responsible for the refurbishment, had negligently failed to advise on fire-resistant panels and was liable for the spread of the fire.

The judge declined to reduce damages for contributory negligence, despite Sahib’s responsibility for starting the fire and findings that inaccurate information from its production manager had contributed to the use of combustible panels. The architects appealed on liability and contributory negligence. The central issues were whether the architects had been negligent and whether Sahib’s fault contributed to the damage within section 1(1) of the Law Reform (Contributory Negligence) Act 1945.

1. Liability. The appeal on liability was dismissed. PKS owed a duty to act as reasonable and skilful architects. Given the warnings from insulation specialists and the known consequences of fire spreading through EPS panels, PKS had to take reasonable steps to ascertain the cooking processes in room G49 and the associated fire risk before deciding to use combustible panels. A proper investigation would have revealed that frying took place with more than a minimal depth of oil. PKS should therefore have advised the use of fire-resistant panels. The breach caused the spread of the fire, and PKS was liable for the resulting damage.
2. Evidence and cross-examination. The appellate court applied the principle in Assicurazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ 1642 that a trial judge’s assessment of competing evidence should not be disturbed unless plainly wrong. It also applied the guidance in Deepak Fertilizers & Petrochemical Ltd v Davy McKee (United Kingdom) London Ltd [2002] EWCA Civ 1006. Failure to cross-examine on a material issue is generally a matter of fairness and good practice, but it is not conclusive where the issue clearly remains in dispute and the witness had notice of the contrary case.
3. Contributory negligence. No distinction was drawn between PKS’s contractual and tortious liability because the contractual liability was the same as the independent liability in negligence, within the category identified in Forsikringsaktieselskapet Vesta v Butcher [1986] 2 All ER 488. Under section 1(1) of the Law Reform (Contributory Negligence) Act 1945, a breach of a duty owed to the defendant is unnecessary. Sahib’s production manager gave inaccurate information about the use of room G49. That fault contributed to the failure to install fire-resistant panels and amounted to contributory negligence.
4. Sahib’s serious negligence in leaving the gas bratt pan operating with excessive oil and a defective thermostat was an effective cause of the spread of the fire. The court explained the approach in Pride Valley Foods v Hall & Partners [2001] EWCA Civ 1001, and approved Astley v Austrust Limited [1999] HCA 6: the defendant’s duty to guard against the consequences of the claimant’s negligence does not automatically make the defendant wholly responsible. Fault includes blameworthiness and causative potency.
5. Assessment. Considering all the circumstances, including PKS’s primary responsibility to investigate and design against the risk, Sahib’s inaccurate information, and the seriousness of Sahib’s negligence in causing the fire, it was just and equitable to reduce the damages by two-thirds. Sahib was entitled to recover one-third of the damages attributable to the spread of the fire. The appeal was allowed to that extent.

• Court of Appeal (Civil Division): The court dismissed the appeal on PKS’s liability, but allowed the appeal on contributory negligence. The damages attributable to the spread of the fire were reduced by two-thirds.
• High Court of Justice, Queen’s Bench Division, Technology and Construction Court: His Honour Judge Bowsher QC held PKS liable for the spread of the fire but made no reduction for Sahib’s contributory negligence.