Design liability: an architect’s duty to guard against client’s negligence

If an architect’s client is aware of the risks of fire and then negligently causes a fire, you might have thought that the client, not the architect, would be responsible for the damage caused by the fire spreading throughout a building. Not so according to a recent Technology and Construction Court case, which gives cause for concern to architects, design consultants and their professional indemnity insurers.

Sahib Foods Ltd v Paskin Kyriakides Sands concerned a fire that broke out in a gas- heated pan in the vegetable preparation area of a food factory in Southall in 1998. The fire spread from the vegetable preparation area and burned down most of the factory, causing approximately £17million in losses. The fire was plainly caused by a number of negligent acts on the part of the tenant of the factory (“Sahib”) and its employees. Nonetheless the Court held the architects responsible for the majority of the losses. The architects were in no way responsible for the cause of the fire but they had designed the refurbishment of the building for Sahib 3 years earlier and specified steel faced polystyrene wall panels for the vegetable preparation area. If they had specified non-combustible panels instead, the fire would not have spread beyond the vegetable preparation area to the rest of the factory.

You could be forgiven for thinking the architects were unlucky in this case given that at the time of the refurbishment:

• Sahib was made aware of the risk of using polystyrene core panels in cooking areas and had attended a demonstration organised by specialist sub-contractors showing the effect of fire on polystyrene core panels
• Sahib knew that polystyrene core panels were to be used for the vegetable preparation area and that if there was a fire in the vegetable preparation area, then it could spread to the panels and throughout the building
• Sahib took part in a risk assessment with the architects in which they’d decided that the vegetable preparation area was a ‘low risk’ area in terms of fire, and
• The specialist sub-contractor visited the site and advised Sahib’s production director specifically in relation to the vegetable preparation area that non-combustible panels should be used for cooking areas. The production director replied that the room was only to be used for ‘steam cooking’ and that satisfied the specialist sub-contractor that non-combustible panels were not required in that area. Sahib’s statement was both wrong and negligent - the room was also to be used for shallow frying, which carries with it a greater risk of fire than steam cooking.

There would have been no fire at all but for the combination of the following unfortunate events, none of which involved any fault on the part of the architects:

• Sahib negligently allowed their employee to use 100mm of oil in the gas heated pan when pan was only suitable for shallow frying and the manufacturer’s instructions specifically warned that the pan should not be used as a fryer because of the danger of the oil catching fire,
• Sahib’s employee negligently left the gas on (in the maximum position) and did not turn off the pilot light at the end of his 14 hour shift;
• Sahib’s supervisor negligently failed to check that the gas had been turned off;
• the thermostat on the pan was broken so that if the gas was left on (as it was), there was nothing to stop the oil heating to the point of combustion.

Nevertheless the Court found that the architects had breached their duty of care because they did not by their design guard against the consequences of negligence on the part of Sahib. They key points which seem to have ‘sunk’ the architects on liability were:

• They had received a letter from the specialist sub-contractor in 1994 expressing great concern that polystyrene core panels had been selected for use in areas where cooking or frying would take place. The sub-contractors strongly recommended that non-combustible panels be used in areas where there is a risk of fire.
• The architects knew or should have known that there was a risk of fire in the vegetable preparation room because they knew there was to be a ‘fryer’ or a ‘gas bratt pan’ in the room. The judge thought “any reasonable architect, like any reasonable householder, can be expected to know that frying, even in a household frying pan, may produce a fire.”
• The architect knew that if a fire in the vegetable preparation area spread to the polystyrene panels, it was likely to spread rapidly through the factory.
• There was available a reasonably priced fire resistant alternative to polystyrene panels. Non-combustible panels would have contained the fire to the vegetable preparation room.
• Inevitably, of course, there was also evidence that the client would have been prepared to spend more money if a case had been made for it.

The judge ordered that damages be assessed by working out Sahib’s total loss (both physical and consequential in terms of trading loss), and then deducting from the figure the total of what would have been lost if the fire had been contained in the vegetable preparation room as it ought to have been. This is a novel and more precise approach to the assessment of damages than is usual in a case involving contributory negligence – the usual ‘rough and ready’ approach would have been to simply reduce the total claim by a percentage amount (eg, 50% or 90%) to take account of Sahib’s negligence in causing the fire.

Impact for consultants

Leave to appeal the judge’s decision has been granted and the Court of Appeal is due to hear the full appeal in November. In the meantime, architects and other design consultants wishing to avoid a similar fate to Sahib’s architects may like to take the following lessons from the case:

• Fulfilling statutory requirements, as the architects did here, does not mean that you have fully performed your duty to your client. When dealing with fire risks, you need to be concerned about the possibility of property damage as well as loss of life and personal injury.
• Don’t rely on the fact that your client is as knowledgeable as you are – this won’t get you off the hook if you fail to meet the standard of a reasonable competent professional exercising or professing to have your special skill.
• In the course of a risk assessment, don’t assume that equipment will be used properly or only slightly misused. If the equipment in the vegetable preparation room had been used properly or had only been slightly misused, there would have been no fire. However, in view of the potential consequences of a fire igniting the panels, the judge felt that the architects should have eliminated the possibility of circumstances likely to cause a fire igniting the panels, before deciding against the modest cost of using flameproof panels.
• If you receive a letter or warning from a sub-contractor expressing serious concern about aspects of your design and recommending specific steps be taken to reduce a risk such as fire spreading throughout a building, then:

1. consider amending your design and passing the letter on to the highest authority at the client with a specific statement telling them of the amendment you are making to your design and fully informing them of the costs implications. This is what the judge thought the architects should have done in this case.
2. If you don’t amend your design, get written confirmation from your client explicitly confirming that they accept the risk. It’s not enough to simply pass on the sub-contractor’s letter or warning to your client. You must impress upon them the gravity of the risk. To have a chance at escaping liability, the judge indicated that the architects in this case would have needed evidence that Sahib responded by saying: “We understand that the risk of our factory burning down. We accept that risk. Please take the cheaper option and design [the vegetable preparation room] to save a few thousand pounds and we will not complain if as a result the factory burns down after one of those unfortunate incidents that tend to happen in food factories.”

• If you have specified polystyrene or EPS wall panels for use in cooking areas in the last 10 years or so, you may want to consider (with your insurers) whether these should be replaced or whether other steps should be taken to eliminate the risk of fire igniting the panels. Even if your client is no longer occupying the building, there is a risk that a subsequent building owner or occupier could successfully claim if they can show that the use of EPS panels in cooking areas is a latent defect of which there is no reasonable possibility of inspection.

For further information please contact Sonia Tame at [email protected] or on +44 (0)20 7367 2955