Liability of contract administrators
This case concerns a claim for damages brought by Mr Harrison and his son, who sustained personal injuries when the fascia of the Maison Blanc patisserie, at 125 Putney High Street, fell down in June 2007. Judgment was entered for the claimants against Maison Blanc in August 2011, and the current case concerned Maison Blanc’s part 20 proceedings and potential recovery from various parties.
One of the issues in this case was the extent to which Cluttons LLP (“Cluttons”), as contract administrator for the refurbishment of the flats above Maison Blanc, was liable for the damage and personal injury resulting from the fascia collapse.
After completion of the refurbishment and removal of the supporting scaffolding in January 2007, Maison Blanc complained to Cluttons that the shop awning box was damaged and the awning could not be properly used by staff. Mr Hunt, a junior surveyor who had day to day responsibility for the refurbishment on behalf of Cluttons, inspected the alleged damage on 30 March 2007 and concluded that the problem was “that the retracting mechanism [had] moved slightly”. Cluttons assured Maison Blanc that they would refer this to the contractor, but the problem remained unresolved. Weeks prior to the collapse Mr Hunt received photographic evidence of the structural state of the awning and fascia, but he did not warn Maison Blanc of the marked deterioration in the situation from that which (he contended) he had previously inspected and understood to be the problem.
The Judge found that the damage shown in the photographs was evident on 30 March 2007 when Cluttons made its inspection and that Mr Hunt failed to observe what the ordinary reasonably competent surveyor should have observed. The Judge rejected Cluttons’ defence that they owed no duty of care to Maison Blanc on the grounds that economic loss of Maison Blanc was: (a) reasonably foreseeable; (b) that there was a proximate relationship between Cluttons, Maison Blanc and the property; and (c) that it was fair just and reasonable for Cluttons to be found liable based on the fact they agreed to inspect the works and therefore accepted responsibility for those inspections. The failure by Mr Hunt to reach the standard of a reasonably competent surveyor therefore amounted to negligence and Maison Blanc succeeded in its primary claim against Cluttons.
As both the fit out contractor, Active Commercial Interiors Ltd (“Active”) and Cluttons had been found liable, the Judge needed to apportion liability as between them. The principles governing apportionment are that the court must have particular regard to: (a) the causative potency of a relevant party’s fault; and (b) the blameworthiness of that party’s conduct relative to that of the other relevant party.
As regards causative potency, the Judge decided that Active’s failure was, in being wholly responsible for causing the relevant danger compared to Cluttons’ failure to observe the danger, was at least twice as culpable. As a starting point, apportionment was therefore made at 67:33.
As regards blameworthiness, the Judge said that Active breached a fundamental contractual obligation which included a public safety element, whereas Cluttons had breached a more limited duty. Having regard for Active’s blameworthiness, he adjusted the apportionment to 78:22 before finally adjusting in light of Cluttons’ blameworthiness to 89:11.
Consequently, Active recovered from Cluttons 11% of the sum it was liable to pay to Maison Blanc.
This case is not just a timely reminder that contract administrators, as well as ‘inspecting’ engineers, architects and surveyors can find themselves liable for, what are effectively, the workmanship errors of contractors; it is also a good reflection of the relative degree of culpability that ‘ought’ to be faced by those professionals (and their insurers) when the court applies the principles of apportionment.
This article first appeared in Law-Now, CMS Cameron McKenna's free online information service, and has been reproduced with their permission. For more information about Law-Now, click here.