Sahib Foods Ltd & Anor v Paskin Kyriakides Sands (a firm)

An architect who knows that a design presents a serious risk cannot avoid liability by leaving the client to identify and correct the defect, even where the client possesses similar knowledge. The architect must exercise the skill and judgment ordinarily expected of the profession and design against reasonably foreseeable misuse and fire risk where the potential consequences are grave. Under the Law Reform (Contributory Negligence) Act 1945, percentage apportionment is not mandatory. Where the claimant caused the initial event but the defendant’s breach caused the subsequent spread and additional damage, damages may be assessed by identifying the loss that would have occurred had the risk been contained and deducting it from the claimant’s total loss.

The claim arose from a fire that destroyed most of a food factory operated by Sahib Foods Limited. The defendants were architects retained for refurbishment works. The claimants alleged that negligent design, particularly the use of combustible EPS panels around a gas-fired bratt pan, allowed the fire to spread. The defendants denied contractual and tortious duties and alleged contributory negligence.

The court considered the defendants’ duties to Sahib as occupier and operator, and to the Co-Operative Insurance Society Limited as beneficial owner. It also considered the appropriate approach to contributory negligence and apportionment where Sahib’s negligence caused the fire but the defendants’ negligence caused its spread.

1. Liability to Sahib. The defendants were retained by Sahib and owed it contractual duties of reasonable skill and care. In any event, they owed Sahib a corresponding duty in tort. A professional architect must exercise the skill and judgment of the ordinarily competent practitioner. Where the architect has actual knowledge of a serious risk, liability follows from failing to act reasonably on that knowledge; the professional’s duty is not reduced because the client may possess similar knowledge. The principles stated in Wimpey v Poole [1984] 2 Ll. LR 499, including the application of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 and the direct negligence principle in Donoghue v Stevenson, were applied.
2. The defendants knew that EPS panels could rapidly transmit fire and knew that a reasonably priced non-combustible alternative was available. They should have designed Room G49 with appropriate fire-resistant construction. They could not rely on an assumption that the bratt pan would be used only as intended or only slightly misused, given the foreseeable risk of fire and the grave consequences of spread. The defendants were therefore negligent and in breach of duty to Sahib.
3. Duty to the Co-Operative. The defendants owed the beneficial owner a duty concerning latent defects which could not reasonably be discovered on inspection, applying Bellefield Computer Services & ors v E Turner & Sons Ltd & ors [2002] EWCA Civ 1823 and Baxall Securities Ltd v Sheard Walshaw Partnership [2001] BLR 36. However, the Co-Operative produced no evidence establishing that the alleged defect was latent or that the duty was relevant to the facts. Its claim failed.
4. Contributory negligence and causation. Sahib’s negligence caused the fire’s initiation, but the defendants’ breach caused its uncontrolled spread. Following the causation-focused approach discussed in Pride Valley Foods v Hall and Partners (2001) 76 CLR 1, the court held that percentage apportionment was inappropriate. Section 1 of the Law Reform (Contributory Negligence) Act 1945 permits a more precise assessment where possible. Sahib’s damages were therefore to be assessed by deducting the physical and consequential loss that would have resulted if the fire had been contained in Room G49.
5. Judgment was entered for Sahib for damages to be assessed. The Co-Operative’s claim was dismissed. The defendants were ordered to pay Sahib’s costs; the Co-Operative was ordered to pay the defendants’ costs. Permission to appeal was refused.

First-instance judgment. The judgment states that permission to appeal was refused.