Southfield School for Girls v Briggs & Forrester (Electrical) Ltd & Ors

The court held that the primary cause of the widespread asbestos contamination at Southfield School was the subcontractor B&W Asbestos Removal Specialists Limited's choice of an inappropriate methodology and their reckless execution of tile removal. B&W breached implied contractual terms to exercise reasonable skill and care and to carry out work in a good and workmanlike manner; those breaches caused the contamination and consequent losses. The Technology and Construction Court treated the £3.1m paid by Briggs & Forrester (Electrical) Limited (B&F) to the claimants as a reasonable settlement and awarded B&F a full indemnity/contribution from B&W under the Civil Liability (Contribution) Act 1978. The court found that the architects, Peter Haddon & Partners (PHP), had some shortcomings in supervision and responsiveness but that those breaches were not causative of the loss and therefore PHP were not required to contribute to the settlement.

This was a first-instance trial concerning catastrophic asbestos contamination arising from summer 2003 electrical works at Southfield School for Girls. The school and Northamptonshire County Council (the claimants) had sued the main contractor Briggs & Forrester (B&F) and the asbestos subcontractor B&W; PHP (the architects) were later joined. B&F paid £3.1m into court in February 2007 and the claimants accepted that sum in March 2007. The remaining issues were contribution and indemnity between the defendants.

Nature of the claims:

• The school and council sued for damages for breach of contract and negligence (settled by payment into court).
• B&F sought contribution or indemnity from B&W in contract and under the Civil Liability (Contribution) Act 1978 in respect of the £3.1m and consequential costs; B&F sought contribution from PHP under the 1978 Act.

Key factual findings:

• Work began 21 July 2003; extensive contamination led to closure from August 2003 until spring 2004 and extensive remediation and replacement of equipment.
• B&W quoted to remove a large number of asbestos-containing ceiling tiles under so-called "semi-controlled conditions"; the court found that choice and practice were inappropriate and that B&W executed the task recklessly with inadequate records and some fabrication of documents.
• B&F and some of their operatives did carry out limited asbestos-related work and had supervisory shortcomings, but those contributions were immaterial compared with B&W’s breaches.
• HSE prosecuted and fined B&F, B&W and the B&W managing director in relation to contraventions of asbestos and health and safety regulations.

Issues framed and court reasoning:

• Whether B&W breached contractual duties and caused the contamination: the court found that B&W designed the method of asbestos removal, adopted an unlawful and unsafe methodology (not fully-controlled) and acted recklessly; therefore they were in breach and causation was established.
• Whether the £3.1m settlement was reasonable as the measure of B&F’s loss: applying authorities recognising the encouragement of reasonable settlements, the court assessed expert evidence, remediation choices, the practical urgency and uncertainties, and concluded the settlement was reasonable.
• Whether PHP’s failures (specification, inspection and delayed response to concerns) caused or materially contributed to loss: the court found some shortcomings but concluded they did not cause the contamination; PHP could reasonably rely on a licensed specialist subcontractor and their breaches were not causative.
• Whether B&F were contributorily negligent so as to reduce recovery: the court found limited failings by B&F but held they were not causative of the school’s losses.
• Whether contribution/indemnity under the Civil Liability (Contribution) Act 1978 was just and equitable: given B&W’s substantial causative responsibility, the court ordered B&W to indemnify B&F for the £3.1m, interest and the claimants’ costs payable by B&F.

Subsidiary findings included criticism of B&W’s record-keeping and post-event document creation, acceptance that full enclosure/fully-controlled removal was required, and analysis of remediation choices (including the decision to strip and replace most asbestos ceiling tiles) which the court judged reasonable in the emergency context.

At first instance the court held that B&F were liable to the claimants in contract for the asbestos contamination but that the contamination and consequential losses were caused principally by the subcontractor B&W's negligent and reckless asbestos removal methodology and execution. The payment of £3.1m by B&F into court was judged a reasonable settlement; accordingly, under the Civil Liability (Contribution) Act 1978 the court ordered B&W to indemnify B&F fully in respect of the £3.1m, interest and the proper costs payable by B&F to the claimants. PHP had some breaches of duty but these were not causative of the loss so they were not ordered to contribute.