Harrison & Ors v Technical Sign Company Ltd

Where a claimant’s conduct is said to break the chain of causation, the defendant bears the evidential burden, but the claimant retains the legal burden of proving causation. The conduct must be sufficiently unreasonable to obliterate the defendant’s breach as an effective cause. The claimant’s knowledge of the breach, the danger and the need for remedial action is highly significant. The inquiry remains fact-sensitive.

Contributory negligence is not a defence to a category 1 strict contractual obligation. Persons liable for the same damage may claim contribution under the Civil Liability (Contribution) Act 1978, and the amount is determined by what is just and equitable having regard to each person’s responsibility. A person who undertakes to inspect reported building defects may owe a limited duty to inspect with reasonable skill and care, record findings and advise on further investigation.

The proceedings concerned contribution and related contractual and negligence claims arising from the collapse of a modified shop fascia, awning box and sign, which injured the claimants. Maison Blanc had already accepted judgment in the claimants’ main action. The effective Part 20 parties were Maison Blanc, Active Commercial Interiors Ltd and Cluttons LLP.

Maison Blanc claimed an indemnity and contribution from Active under contract and the Civil Liability (Contribution) Act 1978. It also claimed damages and contribution from Cluttons in negligence. Active claimed contribution from Cluttons. The principal issues were causation, contributory negligence, the existence and scope of Cluttons’ duty of care, entitlement to contribution and apportionment.

1. Active’s contractual liability. Active’s removal of structural restraint and failure to implement an adequate design or construction solution caused or materially contributed to the fascia’s collapse and breached its contract with Maison Blanc. The breach was a category 1 strict contractual obligation. Contributory negligence therefore could not reduce Maison Blanc’s contractual recovery.
2. Causation. Applying the approach in Borealis AB v Geogas Trading SA [2010] EWHC (Comm) 2789, the court considered the claimant’s knowledge of the breach, the dangerousness of the situation and the need for remedial action. Maison Blanc knew only that the awning box had moved. It did not know of the breach, appreciate the danger or understand that remedial measures were required. Its conduct did not break the chain of causation.
3. Cluttons’ duty. Cluttons accepted Maison Blanc’s request to inspect reported damage. It therefore owed a limited duty to inspect with the reasonable skill and care expected of an ordinarily competent surveyor, record its findings and advise how the matter should be investigated or remedied. That duty extended, in the circumstances, to the claimants because physical injury to passing members of the public was foreseeable.
4. Contribution. Sections 1 and 2 of the Civil Liability (Contribution) Act 1978 enabled Active and Cluttons to claim contribution because each was liable in respect of the same damage suffered by the claimants. Section 1(2) did not restrict the general entitlement in section 1(1), and section 2 governed the amount recoverable.
5. Disposition. Maison Blanc recovered a 100% contribution from Active and succeeded in its claim against Cluttons. Active recovered 11% of any sum payable to Maison Blanc from Cluttons. Costs and consequential matters were adjourned.

First-instance decision. No earlier appellate decision is stated in the judgment.