Claim No: 0BM90105 (main action) & No: 2BM5 0044 (Part 20 Proceedings)
Birmingham DR
Before:
HIS HONOUR JUDGE David Grant
(sitting as a judge of the High Court)
B E T W E E N
MRS GILLIAN HARRISON MR MICHAEL HARRISON MR NIGEL HARRISON | Claimants |
and | |
(1) TECHNICAL SIGN COMPANY LIMITED | First Defendant |
(2) MAISON BLANC LIMITED | Second Defendant |
(3) ACTIVE COMMERCIAL INTERIORS LIMITED | Third Defendant |
(4) CLUTTONS LLP | Fourth Defendant |
(5) R&J BUILDING SERVICES LIMITED | Fifth Defendant |
Judgment
Introduction
These are the part 20 proceedings in a claim commenced by the claimants for damages for personal injuries arising out of an accident which occurred on 23rd June 2007, when the claimants were walking past the front of the premises occupied by Maison Blanc Ltd (“Maison Blanc”) at 125 Putney High Street, London SW15 (“the premises”).
On that occasion, what has been described in these part 20 proceedings as “the modified fascia”, to which was attached the new sign at the front of the premises, fell down and on to the claimants, causing serious personal injuries to each of them.
The proposed general arrangement of the frontage to the premises, including the new sign, is shown in drawing number 154/WA02 dated December 2004 prepared by Owen Design Associates (“ODA”) (page 5/1125). An illustration of those elements which fell down is to be found in a sketch number A4/SK1 prepared by Mr Tutt of Jenkins & Potter (who was the expert engineer called on behalf of Maison Blanc) which is at appendix G to his report (page 5/1127).
By order dated 8 August 2011 (page 1/376) made by consent, judgement was entered for the claimants against Maison Blanc for an amount to be decided by the court, and the claimants’ remaining claims against all the other defendants were stayed with liberty to restore. Thereafter, also by consent, all issues in the various part 20 proceedings were transferred to the Technology & Construction Court in Birmingham for determination: see the order dated 9 December 2011 (page 1/385).
By the time of the pre-trial review in the part 20 proceedings held on 30 April 2012, it was common ground that there was no causal link between (a) the work which R&J Building Services Ltd (“R&J”) had carried out to the first floor of the premises between approximately August 2006 and January 2007, and (b) the events which occurred on 23 June 2007. As a consequence, R&J took no part in the trial of the part 20 proceedings: see the preamble to the order at page 1/394.
Also by the time of the pre-trial review in the part 20 proceedings, Active Commercial Interiors Limited (“Active”) and Technical Sign Company Limited (“Technical Sign”) had come to terms whereby neither Active nor Technical Sign would advance any positive case against the other, and Active would take over the defence of Technical Sign in the part 20 proceedings: see the preamble to the order dated 30 April 2012 (page 1/394). As a result, when the trial commenced, Mr Matthews appeared on behalf of both Active and Technical Sign.
Further, by the conclusion of the first day of the trial, Technical Sign and Cluttons LLP (“Cluttons”) had also come to terms, which enabled Technical Sign then to accept Maison Blanc’s offer to discontinue its part 20 claim against Technical Sign, which Maison Blanc had made in the light of the admission which Active had previously made on 25 May 2012 (DG/41). I shall refer to that admission in more detail below.
As a result of these various accommodations, with effect from the commencement of the second day of the trial, there remained only three effective parties in the part 20 proceedings: Maison Blanc, which was in effect the claimant in the part 20 proceedings; Active, which was in effect the first defendant in the part 20 proceedings; and Cluttons, which was in effect the second defendant in the part 20 proceedings. Notwithstanding that notional description of the role of each of the three effective parties, it is necessary to identify precisely what claims are made by which party against which other party in the part 20 proceedings.
Summary of the various claims brought in the part 20 proceedings
Maison Blanc’s part 20 claims against Active
Maison Blanc brings two claims against Active (Maison Blanc’s claim is at 1/15/145 & Active’s defence is at 1/23/242; Maison Blanc’s amended claim is at 1/33/317 & Active’s amended defence is at 1/35/330):
Maison Blanc firstly brings a direct claim against Active in contract, for damages, effectively amounting to an indemnity;
Maison Blanc secondly brings a claim against Active for contribution under the Civil Liability (Contribution) Act 1978 (“the 1978 Act") on the basis that each is liable to the claimants in respect of the same damage.
Active also brings a direct claim against Maison Blanc for contribution (Active’s claim is at 1/17/158 & Maison Blanc’s defence is at 1/21/218). That claim involves essentially the same subject matter as Maison Blanc’s claim for contribution against Active, and it will be convenient to consider both of these cross claims for contribution at the same time.
Maison Blanc’s part 20 claim against Cluttons
Maison Blanc brings two claims against Cluttons (Maison Blanc’s claim is at 1/25/260 & Cluttons’ defence is at 1/29/282):
Maison Blanc firstly brings a direct claim against Cluttons in negligence, for damages;
Maison Blanc secondly brings a claim against Cluttons for contribution under the 1978 Act on the basis that each is liable to the claimants in respect of the same damage.
Active’s part 20 claim against Cluttons
Active brings a single claim against Cluttons (Active’s claim is at 1/26/268 & Cluttons’ defence is at 1/30/287): it is a claim for contribution under the 1978 Act on the basis that each is liable to the claimants in respect of the same damage.
The evidence called at trial
While various witness statements were served by various parties before the trial commenced, in the event the parties only called four live witnesses of fact at trial. Active had also served a notice under the Civil Evidence Act in respect of the witness statement of Florent Arcin (page 1/51A/396A). The evidence thus adduced at trial consisted of the following:
The witness statements and oral evidence of Matthew Ashmore (page 2/462), Martin Turner (page 2/480), Charles Williams (page 2/494), and Thomas Hunt (page 2/516);
The witness statement of Florent Arcin adduced under the Civil Evidence Act;
The various documents contained in bundle 5;
The reports of Mr Tutt and Mr Price, and the engineers’ joint statement to which they (and also Messrs Wyatt, Bachelard and Wasilewski to various extents) had contributed (page 3/76/1424); &
The reports of Mr Freeman, Mr Tuffin and Mr Male, and the surveyors’ joint statement to which they had all contributed (page 4/1665A).
Tenure
The landlords of the premises are the governors for the time being of St Olave’s and St Saviour's Grammar School Foundation (“the Foundation”). By a lease dated 25 January 2005 Maison Blanc entered into a 10 year lease of the retail premises on the ground and basement floors: see a copy of the lease at page 5/87/1736.
The “fit out works” carried out in 2005
During 2005 Maison Blanc carried out alterations to the premises, largely described in drawings prepared by ODA: see the licence for alterations at page 5/88/1801, the letter from ODA to Active dated 22 December 2004 at page 5/89/1810, and the various drawings prepared by ODA between pages 5/90/1812 and 5/187/1829. The final certificate was dated 4 April 2005: see Page 5/118/1864.
The contractor for the alteration works was Active: see the various documents at page 5/109/1845. Although a copy of the building contract between Maison Blanc and Active is not included in the trial documents, an extract from the JCT standard form of building contract for minor building works, 1998 edition, is at page 5/138/1901. It is common ground between Maison Blanc and Active that the contact between them was on or incorporated such terms: see paragraph 8 of Maison Blanc’s amended part 20 claim at page 1/33/318, and paragraph 7 of Active’s amended defence at page 1/35/333.
Clause 5.1 of the JCT standard form (page 5/138/1902) provides that:
“The Contractor shall comply with, and give all notices required by, any statute, any statutory instrument, rule or order or any regulation or bye-law applicable to the Works ….”
It is common ground that the relevant statutory regulations include the Building Regulations 2000 (Tab 30 of the Authorities Bundle). Regulation 4 requires that:
Building work shall be carried out so that –
It complies with the applicable requirements contained in Schedule 1; …
Building work shall be carried out so that, after it has been completed -
any building which is extended or to which a material alteration is made …
complies with the applicable requirements of Schedule 1 or, where it did not comply with any such requirement, is no more unsatisfactory in relation to that requirement than before the work was carried out.”
Schedule 1 of the Regulations provides that;
“A1(1) The building shall be constructed so that the combined dead, imposed and wind loads are sustained and transmitted to the ground –
(a) safely; and
(b) without causing such deflection or deformation of any part of the building …”
The new electrically operated awning was installed by Deans Blinds & Awnings: see the letter dated 22 February 2005 at page 5/111/1852. The new fascia sign was installed by Technical Sign: see Technical Sign’s installation sheet dated 9 March 2005 at page 5/116/1862.
The joint statement of the expert engineers (page 3/76/1424) sets out the agreed relevant history. The date of the draft, but unsigned, copy of that joint statement is 29 March 2012. This joint statement was prepared by Mr Tutt, acting on behalf of Maison Blanc; Mr Price, originally instructed on behalf of Technical Sign, but following the accommodation between Technical Sign and Active, acting on behalf of both of them, and called at trial on behalf of both of them; and Mr Wyatt, acting on behalf of Cluttons, who was not in fact called as a witness at trial.
The essential elements are shown in diagram 1 on page 3/76/1429, which shows the position before Active carried out the fit out works, and in diagram 2 on page 3/76/1430, which shows the position after Active carried out the fit out works.
In their joint statement, the engineering experts stated as follows:
“19. The structure supporting the original sign and original soffit board comprised the vertical original fascia and horizontal original soffit timbers, connected together to form a structural frame of L-shaped cross section. This predates the fit out works ... probably by many years.
20. Factual and photographic evidence from Mr Tutt’s examination of the inclined facade about three weeks after the collapse indicates that there was likely to have been a line of about 10 horizontal screw fixings between the original fascia and the inclined facade, about 75mm below the top of the original fascia. These fixings are likely to have comprised steel screws that passed through the wood frame of the original fascia and into plugs in the inclined façade. The fixings relied on shear strength to support load from the original fascia. Mr Tutt’s limited inspection from ground level of the remains of the fixings on the inclined facade indicated that five of the plugs pulled out entirely, leaving holes without remnant of plug or screw, in the inclined facade; and five plugs were still in place, with evidence of a fractured screw in one of the plugs.
21. Level with about mid-height of the original fascia, it is evident from an un-painted band along the inclined facade that there had been at some time a substantial horizontal member along the inclined facade. Vertical staining patterns serve as evidence that this member must have been in position for some time, and numerous holes in the inclined facade show where it appears to have been fixed to the inclined facade. If this horizontal member had been in position behind the original fascia at any time, it may then have provided horizontal restraint to the original fascia. On information from Mr Tutt, however, there were no signs of any corresponding fixings attaching the original fascia to this horizontal member, and Mr Tutt did not find such a member in the debris from the collapse. The member can also not be seen in the gap between the original fascia and the inclined facade in photographs taken during the fit out works. It is not possible to say when or how this member was removed.
22. On information from Mr Tutt, there was a line of vertical fixings at the back of the overhang, near the shop window and roller shutter, and there was a small number of vertical fixings in an irregular pattern elsewhere in the overhang, but it is not known which of these were fixings for the original soffit timbers and which supported the ladder frame to which the rear of the new soffit board was attached.
26. All experts agree that the top fixings are likely to have carried the greater part of the weight of the original fascia.
27. It was necessary and important for the original fascia to have horizontal restraint on at least two levels. The fixings referred to in paragraph 20 above provided horizontal restraint at an upper level. The original soffit timbers will have provided horizontal restraint, preventing the original fascia from moving horizontally at the lower level.
28. The relevant external works comprise the modifications to the original fascia ... replacement of the original sign with the new sign, and the fitting of an awning within the new awning box.
29. ODA drawing 154/WAO2 showed a general arrangement of the design of these works. This drawing contained no information to show how the work to the original fascia should be undertaken, and a dimensional check indicates that the awning box could not fit under the original fascia. This appears only to have been discovered during the fit out works.
30. ODA drawing 154/ WAO2 showed a general arrangement of ODA's design intent, based on what must have been ODA's assumptions about the original fascia and whatever lay behind it. This was a schematic design without any essential design or construction details. Opening up on-site (i.e. removing the original soffit board to allow visual inspection) was necessary before all the essential details could be generated. But, before opening up, it should have been self-evident that modification of the original fascia was needed before the awning box could be fitted, and this was not shown on ODA’s drawing.
31. Opening up the original soffit board provided some of the information on the original construction, in particular that when cutting the original soffit timbers, the remaining part of the original fascia would only be fixed at the top. We would have expected either the architect or the engineer to have been advised by Active of the construction discovered, and to have then produced suitable details. However, it appears that Active took it upon itself to carry out this element of the design. Who ever undertook the design of the modified fascia had three main options: (a) to design a new soffit structure and awning box to support all the loads and forces acting from the modified fascia, new sign, awning box and awning; (b) to investigate the condition and adequacy of the fixings to the front part of the original fascia, and to take this information into account in its design; or (c) to replace the original fascia in its entirety. None of these options was implemented in the design and construction of the modified fascia.
32. When Technical Sign made a dimensional survey on 11 February 2005, at least four of the original soffit timbers had already been cut. It is not known when these were cut, although it is likely that they were cut by Active or its agents in preparation for the modifications to the original fascia. Cutting the three remaining original soffit timbers from over the doorway at the left, and cutting away the roughly 250mm height from the bottom of the original fascia, were part of Active’s works.
33. Between the dimensional survey on 11 February 2005 and the new sign being fitted on 09 March 2005, a height of something like 250mm was cut away from the bottom of the full length of the original fascia, and a new timber member was fitted to it to form a new lower edge. This was the modified fascia.
34. The awning box could not have been fitted in the position where it was fitted, generally as shown in the ODA drawings, without the modifications described in paragraphs 28 and 33 above.
35. The awning box was constructed from medium density fibreboard (MDF), and comprised a horizontal top board fixed to the underside of the modified fascia, and a vertical rear board fixed to the inboard edge of the horizontal top board. The bottom of the rear vertical board was fixed to the top surface of the new soffit board, approximately 250mm from the front edge of the new soffit board. There was no front to the awning box, but the awning had a vertical outer edge board, which closed across the front of the awning box when the awning was retracted.
36. The awning box was held in its intended cross sectional shape at the two ends only. This was accomplished by MDF end boards. The available photographs show no evidence that the end boards were fixed to the concrete surrounds.
37. The new soffit board, the front of which formed the base of the awning box, was about 50mm lower than the original soffit board. It was supported behind the awning box, not by horizontal timbers as before, but by a vertical timber ladder frame at the rear, just in front of the roller shutter, and by the bottom of the awning box at the front. The photographic evidence shows no other supports for the new soffit board.
38. Horizontal restraint to the lower edge of the modified fascia now relied on resisting forces being transmitted through the depth of the awning box, then the new soffit board, and finally through the vertical ladder frame into the shop front overhang.
39. The modifications will have resulted in a modified fascia with less horizontal restraint than the original fascia, one that was therefore susceptible to increased dynamic loading, such as that exerted by wind on the awning while in its extended position.
40. This new arrangement will not have provided the necessary horizontal restraint to the lower edge of the modified fascia or the necessary resistance to twisting of the awning box caused by the extended awning.
41. The awning was supported by four metal brackets fixed to the rear board of the awning box.
42. The awning box was supported by its attachment to the lower edge of the modified fascia. Photographs show that there were no other vertical supports or horizontal restraints for the awning box.
43. When the modified fascia collapsed, the awning, the rear vertical board of the awning box and the new soffit board, all attached to each other, appear to have been prevented from falling to the ground because (i) one end of this assembly came to rest above the top of the doorway to the upper floor flats; (ii) the middle jammed against a circular metal post supporting the structure above …; and (iii) the new soffit board remained attached to the vertical ladder frame at the rear. The available photographs suggest that, were it not for these unintended supports, the awning and the whole of the awning box would have fallen to the ground with the modified fascia.
50. Absent any undiscovered additional means of support, the original fascia was, on any reasonable standard, inadequately supported. Though not at the point of collapse, its margin of safety was likely to be seriously deficient, and therefore it was likely to be excessively vulnerable to structural failure if any modification added loads to it and/or further weakened it.
51. The modified fascia and the awning were dependent solely on the top fixings for vertical support.
52. Cutting the original soffit timbers removed the necessary second line of horizontal restraint, allowing the modified fascia to move horizontally when any horizontal forces acted on it, causing prying action on the top fixings.
53. Twisting actions on the awning box, and horizontal forces on the base of the modified fascia, caused prying actions on the top fixings.
54. Attaching the awning and the awning box to the modified fascia caused the following additional actions on the awning box and the base of the modified fascia: (i) vertical forces from the weight of the awning; (ii) twisting actions from the weight of the extended awning; (iii) dynamic horizontal forces when extending and retracting the awning; (iv) twisting actions when using any physical force to try to extend or retract the awning when it was malfunctioning; and (v) large vertical and twisting actions from wind forces on the extended awning.
55. The additional actions referred to in paragraph 54 increased the pull-out tension forces and vertical shear forces on the existing fixings at the top of the modified fascia.
56. On balance of probabilities, the principal cause of the collapse was that (a) the modifications to the original fascia further weakened the fixings along its top edge; and (b) the awning and its operation caused additional forces to be applied to the existing fixings at the top of the modified fascia.
57. The relative effect of the above over a period of time led inevitably to the collapse.
60. All the experts agree that the new sign weighed about the same or a little less than the old sign, and did not therefore create any additional loads or forces on the modified fascia.”
The admission by Active
Following receipt of the engineers’ joint statement, Active’s solicitors wrote the following letter to Maison Blanc’s solicitors dated 25 May 2012 (page 5/192/1967):
“It is admitted on behalf of … Active … that they
Failed to ensure that proper and sufficient steps were taken to ensure the support of the fascia was maintained and not reduced by the carrying out of the works in that (a) the modifications made by Active resulted in the fascia having less horizontal restraint and being susceptible to increased dynamic loading such as that exerted by wind acting on the awning while in its extended position; (b) the resulting dynamic forces applied through connection between the fascia, awning box and awning resulted in additional forces being applied to the existing fixings at the top of the fascia, and thereby contributed to the mechanism of failure of those fixings which resulted in the collapse of the fascia.
Therefore (a) would be in breach of the duty owed to the claimants; (b) are in breach of the terms of the contract with Maison Blanc … sections 1 and 5.1; (c) are liable to Maison Blanc in respect of Maison Blanc’s additional claim against Active to make a contribution towards the claimants’ claims and costs.
For the avoidance of doubt, Active does not accept or admit that they are liable to provide a complete indemnity to Maison Blanc by reason of the matters set out in their defences and in the additional claim against Maison Blanc."
Findings of fact as regards the fit out works carried out in 2005
Based on the evidence contained in the engineers’ joint statement, I make the following findings of fact:
In the course of the fit out works which Active carried out in 2005, in order to fit the awning box, Active (a) cut away and removed the bottom section of the original fascia; and (b) cut away and removed the original soffit timbers and the original soffit board, replacing them with the new soffit board, which was supported by the new ladder frame: see paragraphs 32 and 33 of the engineers’ joint statement.
The consequence of such acts by Active was to remove the necessary second line of horizontal restraint to the modified fascia: see paragraph 52 of the engineers’ joint statement.
The consequence of that was to weaken further the fixings along the top of the fascia: see paragraph 56 of the engineers’ joint statement. It is immaterial in this context whether one refers to the original fascia or the modified fascia, as the top of the fascia was not modified in any way.
In (a) cutting away and removing the bottom section of the original fascia; and (b) cutting away and removing the original soffit timbers and the original soffit board & replacing them with the new soffit board, Active failed to implement any of the design and/or construction options identified by the engineers in paragraph 31 of their joint statement.
The actions summarised in subparagraph (1) above, and the failure to implement any of the design and/or construction options summarised in subparagraph (4) above were, together with the use of the awning (which caused additional forces to be applied to the existing fixings along the top of the modified fascia), the principal causes of the collapse of the modified fascia, to which the new sign was fixed: see paragraph 56 of the engineers’ joint statement.
In carrying out the actions summarised in subparagraph (1) above, and in failing to implement any of the design and/or construction options summarised in subparagraph (4) above, Active was in breach of its contract with Maison Blanc.
While the content of the engineers’ joint statement is sufficient to found such findings of fact, as regards Active’s admission, Maison Blanc made the following submissions at paragraphs 14 to 16 of its written closing submissions:
“14. Active have accepted that they are in breach of the Building Regulations and therefore section 5.1 of the incorporated JCT terms – B5/T192/1967. Their concession expressly accepts that it failed to ensure that “the support of the fascia was maintained and not reduced by the carrying out of the works, in that:
(a) the modifications made by [Active] resulted in the fascia having less horizontal restraint and being susceptible to increased dynamic loading such as that exerted by wind acting on the awning whilst in its extended position;
(b) the resulting dynamic forces applied through connection between the fascia, awning box and awning resulted in additional forces being applied to the existing fixings at the top of the fascia and thereby contributed to the mechanism of failure of those fixings which resulted in the collapse of the fascia.”
15. It is therefore expressly accepted by Active that it was in breach of its duty to the Claimants and that it was in “breach of the terms of its contract with [Maison Blanc] (sections 1 and 5.1)”
16. By its concession, Active also accept that it is “liable to [Maison Blanc] in respect of [Maison Blanc’s] additional claim against [Active] to make a contribution towards the Claimants’ claims and costs. For the avoidance of doubt, [Active] do not accept or admit that they are liable to provide a complete indemnity to [Maison Blanc] by reason of the matters set out in their Defences and in the Additional Claim against [Maison Blanc].” (emphasis added).”
I accept those submissions, & also find that the terms of Active’s admission are consistent with the findings of fact made in paragraph 22 above.
The work carried out the first floor and exterior in 2006 and early 2007
About 18 months after Maison Blanc entered into its lease in respect of the ground floor and basement of the premises, the Foundation decided to refurbish the two upper floors of the premises into two two-bedroom flats: see paragraph 8 of Thomas Hunt's witness statement on page 2/517. He went on to state:
“9. Cluttons were appointed as the contract administrator for the refurbishment works at 125 and 127 High Street. I had day-to-day responsibility for the project, although Timothy Lawn, a partner in Cluttons, had overall responsibility for the contract.
10. After the Foundation decided to refurbish the upper floors 125 and 127 High Street, Cluttons prepared drawings and a specification to produce an invitation to tender document … The … contract was awarded to … R&J.
12. In addition to the conversion and refurbishment … into flats, the contract between the Foundation and R&J involved the provision of new roof coverings, replacement of the windows and minor exterior decorative work. The provision of the new roof did not include replacement of the timbers.
13. The exterior works … were undertaken on both the front and rear elevations. The works required the erection of scaffolding to provide access to the areas where the works were to be undertaken. Under the contract R&J were responsible for the design provision of the scaffolding.
14. The contract works started in August 2006 and were initially for duration of 16 weeks, but this had to be extended as it was not possible to bring in the new utility services from the High Street, and it was eventually necessary to reroute them via the rear of the property.
15. The contract did not involve R&J in undertaking any work to ground floor or basement areas, except in the short section of corridor from the front entrance of 125 High Street, which led to the stairs to the upper floors.
16. I visited the properties on a weekly basis and there were also regular site meetings with R&J, which were scheduled at least fortnightly. Timothy Lawn also visited the properties on occasions during the course of the contract and attended most of the formal (once a month) site meetings.
18. Both Maison Blanc and Cancer Research UK were kept advised of developments, and they had telephone numbers and e-mail addresses for the Cluttons staff involved in the project to contact should the need arise. They were also in regular contact with R&J’s site manager, Terry.
19. The scaffolding for the works to the exterior was erected on … 27 September 2006 … The scaffolding was not attached to, and did not touch, the fascia of 125 High Street. When the scaffolding was first erected, Maison Blanc did complain that the scaffolding obscured their shop signage and, following discussion with them, Cluttons obtained new advertising banners which were attached to the front of the scaffolding.
20. The scaffolding to the front elevation was taken down by 16 December 2006, and, following this, no exterior works were undertaken on the front elevation, although exterior works continued to the rear of the property. The works to the interior of the property had not been completed when the scaffolding was taken down, and these continued, although by then the interior works were largely complete. Following the removal of the scaffolding, Maison Blanc started to use their awning again on a regular basis.
21. The works … were largely completed by the end of January 2007, although some minor works, together with the provision of the new utility services … continued after this … I received no complaints whatsoever from the management or staff at Maison Blanc regarding “banging and crashing” or cracks appearing in walls and ceilings in early 2007, or at any other time during the course of the works.”
Save as regards the last sentence of paragraph 20 of his witness statement (to which I shall refer below), I accept Thomas Hunt's evidence cited above as an accurate statement of the general background and circumstances relating to the work which R&J carried out to the first and second floors of the premises between approximately August 2006 and approximately January 2007. It is to be recalled (as noted in paragraph 5 above) that, by the time of the PTR in these proceedings, the parties had accepted that there was no causal link between the work which R&J had carried out and the events which later occurred on 23 June 2007. Thus, no complaint was made in the course of the trial about R&J’s work.
Maison Blanc’s observations and complaints in 2007, to 30 March 2007
In paragraph 4 of his witness statement (page 2/464) Matthew Ashmore, who was Maison Blanc’s interim operations director at the time, stated:
“I cannot recall exactly when the scaffolding was taken down. However, I believe that damage was observed to the premises upon it being removed. I became aware of the damage during the course of one of my routine visits to the shop, and immediately referred the problem to Jeremy. It was clear on my first visit following the removal of the scaffolding that damage had been caused to the awning box, which had shifted away from the shop front and become twisted, meaning it was no longer parallel with the shop window. The retractor mechanism had also failed, meaning the awning/ canopy could not be properly used by staff.”
The key contemporaneous documentary evidence about the observations and complaints made by Maison Blanc personnel in 2007 is as follows:
On or about 22 March 2007, Florent Arcin, who was Maison Blanc’s area manager with responsibility for the premises, spoke with Jeremy Brecknock (who was apparently his line manager), as a result of which Jeremy Brecknock wrote an e-mail to Florent Arcin as follows (page 5/148/1913):
“Reference our conversation earlier, before I contact the landlord, please confirm that the extent of the “damage” relates to the awning and nothing else.
Regarding the damage, are you saying it is caused by debris falling onto it during the works above as this is the only way I can imagine it could be damaged.”
Florent Arcin replied to Jeremy Brecknock a little later (18:27) on 22 March 2007 as follows (page 5/149/1914):
“Jeremy
This is the shop frontage that needs attention some building work has been carried out in the flat above two weeks ago and that's when the damage seems to have occurred. This maybe difficult for us to prove that they are responsible for it but it did happen at the same time. The awning itself is fine but that is the frontage of the shop that have suffered.”
Matthew Ashmore stated in cross examination (DG/17) that when Florent Arcin referred to the “frontage”, he understood Florent Arcin to be referring to the awning box.
On 27 March 2007 Jeremy Brecknock wrote an e-mail to Einar Roberts at Cluttons as follows (page 5/152/1917):
“Hi Einar
I am not sure whether you still have responsibility for this property? Please advise ...
I had to visit today to investigate what appears to be damage to the protruding front structure which houses the awning. It appears that the unit has slipped forward during the works Cluttons/its contractors were going on the first floor.
Also as a result of the works there has been some internal movement to some piping coming from the first floor to our unit probably caused by the vibrations during the demolition work you were undertaking. This has resulted in loose plaster coming off the areas where the pipes come from the first floor.
Finally, this morning I counted 8 refuse bags left on the pavement in front of the entrance to the first-floor flat - this is also in front of our shop. As you are aware rubbish cannot just be left in the street. This is obviously impacting the image we try and portray to our customers.
Could you please investigate these points and if it is not your remit anymore, please direct me to someone within Cluttons who has assumed responsibility for this property.
Many thanks”
Einar Roberts replied briefly as follows (page 5/153/1920):
“Thank you for your e-mail. Andrew Forrester has responsibility for this client and building. He is presently away on annual leave; returning Thursday.
The works to the upper parts are being overseen by Thomas Hunt from our projects department and I have asked that he call you on receipt of this e-mail.”
Arrangements were then made for Thomas Hunt to visit the premises on Friday, 30 March 2007: see Jeremy Brecknock’s e-mail to Thomas Hunt of 27 March 2007 (page 5/1921).
On 29 March 2007 Matthew Ashmore visited the premises: see paragraph 6 of his witness statement (page 2/465).
Following his visit, on 30 March 2007 Matthew Ashmore wrote an e-mail to Jeremy Brecknock as follows (page 5/155/1922):
“…
Secondly, visited Putney yesterday and I know you have seen the canopy damage for yourself which was definitely not there before the scaffolding went up. Max pressure needs to be put on Cluttons to resolve this one, especially as we had to suffer loss of trade and inconvenience whilst the scaffolding was up. Will await further update on this one …”
Based on that evidence, in particular the history as set out in the contemporaneous e-mails, I make the following findings of fact:
The first time any of Maison Blanc’s employees became concerned about the operation of the awning box was when Florent Arcin spoke to Jeremy Brecknock on or shortly before the exchange of e-mails on 22 March 2007 (pages 5/1913-4).
The absence of any contemporaneous record (especially e-mails) from Matthew Ashmore to any of Florent Arcin, Jeremy Brecknock, or any other person at Maison Blanc, before the exchange of e-mails which occurred on 22 March 2007 indicates that Matthew Ashmore did not become aware of any problem with the awning box (or any other relevant matter regarding the shop frontage) before that date. I thus find that Matthew Ashmore was mistaken when he stated in paragraph 4 of his witness statement that “damage was observed to the premises upon (the scaffolding) being removed", if by that he meant that relevant damage was observed by one of Maison Blanc’s employees, though not himself, on a date very close to the date when the scaffolding was struck, which was on or about 16 December 2006.
I also reject the suggestion made by Matthew Ashmore in paragraph 4 of his witness statement to the effect that he had become aware of relevant damage "during the course of one of my routine visits to the shop", if by that he meant one of his visits between January and March 2007 i.e. before the exchange of e-mails which occurred on 22 March 2007.
Instead I find that Matthew Ashmore first became aware that there was a problem with the awning box when he received Jeremy Brecknock’s e-mail to Florent Arcin of 22 March 2007, which was copied to him (page 5/1913).
While I accept Matthew Ashmore’s statement that he visited the premises on 29 March 2007, I reject the assertion which he made in paragraph 6 of his witness statement that when he visited the premises on that occasion “… the damage was still present and remained unchanged from the time when the scaffolding was removed.” In that paragraph of his witness statement Matthew Ashmore went on to state that, following his visit, he wrote an e-mail to Jeremy Brecknock (that is the e-mail referred to in paragraph 27 (7) above). I find, on the balance of probabilities, that if Matthew Ashmore had observed and been concerned about any relevant damage to either the awning box or any other part of the shop frontage on an earlier occasion, he would have written a like or similar e-mail to Jeremy Brecknock or another appropriate employee of Maison Blanc.
Further history between 30 March 2007 and 23 June 2007
On 30 March 2007 Thomas Hunt of Cluttons visited the premises: see paragraph 24 of his witness statement on page 2/520.
The key contemporaneous documentary evidence about events which occurred between 30 March and 23 June 2007, in particular as regards Maison Blanc’s involvement, is as follows:
On 2 April 2007 Thomas Hunt wrote an e-mail to Jeremy Brecknock as follows (page 5/160/1928):
“I believe that the problem with the awning is that the retracting mechanism has moved slightly. This is causing the awning to catch on the side of its frame and therefore is unable to fully retract back into its original position.
I will ask the contractor to investigate this problem in order to get it rectified.”
On 16 April 2007 Jeremy Brecknock asked Thomas Hunt “Any idea when the contractor is expected to attend to this matter?” (page 5/161/1929); Thomas Hunt replied the following day "I will chase the contractor regarding the repair of the awning and let you know accordingly.” (page 5/162/1930).
On 19 April 2007 Matthew Ashmore wrote an e-mail to Jeremy Brecknock, copied to Florent Arcin, asking if there was “Any more news on Putney canopy yet?” (page 5/163/1931); Jeremy Brecknock replied the following day (page 5/164/1932):
“Awning/landlord chased. No reply yet. However, the awning does work."
There is then a gap in the documentary history until 21 May 2007 when Jeremy Brecknock wrote an e-mail to Florent Arcin as follows (page 5/165/1933):
“I called in at Putney on Saturday morning and thought it an idea to give you a "heads up" on my visit.
1. Awning: Not being used as although it works they seem unhappy to use it due to the apparent movement from the wall. I will follow up with the landlord but have you told them not to use it?”
Also on 21 May 2007 Jeremy Brecknock wrote an e-mail to Thomas Hunt chasing progress as follows (page 5/166/1935):
“The contractor hasn't been to site yet. Can you get them to confirm a date for this? An alternative is that I get a contractor and cross charge you/the landlord. Let me know how you wish to proceed this week please."
The same day, Thomas Hunt sent an e-mail to Paul French of R&J as follows (page 5/168/1938):
“2. Did you investigate the problem of the awning fully retracting into the shop beneath 125. I have the tenant chasing me re this. We may need to have a chat about this. I think I know what the problem is and should be simple to fix."
That elicited the following reply from Paul French later on 21 May 2007 (page 5/169/1939):
“Re the awning we did re-visit this and the tenant called out the specialist under their contract. I will get Terry to clarify though … we'll get back to you asap …
On 29 May 2007 Thomas Hunt wrote again to Paul French as follows (page 5/174/1944 & 2/69/983):
“4. Awning to shop front of 125. The tenant has confirmed that they did not get any of their contractors to have a look at the awning. I think that this could be fixed by unrolling the awning and pulling it to the right so that it retracts in a straight line and doesn't get caught on the edge of its frame.
Perhaps you could give me a call to discuss these items when you have a chance."
Paul French replied on 30 May 2007 as follows (page 2/69/983):
“Re the awning. The tenant did call out the service engineers to attend to a previous fault with the operation. We did assist and give access to the body of the unit because we had exposed the unit from above. We do not really wish to tamper with it as the service agreement may be invalidated. However, if this is not the case we are willing to take a look but with no guarantees?"
Then on 7 June 2007 Florent Arcin wrote an e-mail to Jeremy Brecknock, copied to Matthew Ashmore, as follows (page 5/176/1946):
“Dear all,
I have attached some close-up of the Putney frontage. I hope this will help in some ways in the repair/claim process."
Later that day Jeremy Brecknock forwarded that e-mail to Thomas Hunt adding the following message (page 5/177/1950):
“Further to my recent (unreturned) calls/e-mails. Clear evidence of the damage caused by your contractors which will need specialist attention and recharge to yourselves (to follow).
Also on 7 June 2007 there was a conversation between Jeremy Brecknock and Thomas Hunt. Thomas Hunt’s attendance note is as follows (page 5/160/1928):
“ 125 and 127 Putney High Street
Telephone Conversation with Jeremy Brecknock
Spoke to Jeremy re the awning. I told him that the contractor had inspected the awning and was unwilling to tamper with it as they did not want to invalidate any service agreement they have with the maintenance contractor. I recommended that he should call upon the maintenance contractor to assess the problem.
Re the costs I said that this is something that we could deal with at another time if there is any call out costs.”
On 18 June 2007 Matthew Ashmore wrote an e-mail to Jeremy Brecknock as follows (page 5/180/1954):
“I have asked D&M to visit the shop and provide estimate of repair cost. I will then come back to you. Don't think it's worth calling Dean’s as the problem is the box not the canopy which is in OK working order."
The photographic evidence
Between pages 2/543 - 549 is a series of copies or prints of photographs of the exterior of the premises which Thomas Hunt took on various dates between 4 May 2006 and 25 June 2007 ("the Cluttons photographs"). The photographs he took on 9 January 2007 are at pages 2/545-6. See generally paragraph 31 of his witness statement (page 2/522).
Between pages 2/511 -513 are copies or prints of three photographs which Florent Arcin took of the exterior of the premises ("the Arcin photographs").
There was a dispute about the date of the Arcin photographs. At paragraph 6 of his witness statement, Florent Arcin stated:
“I took some photographs a few months prior to the collapse of the false fascia. I attach three colour photographs … along with a covering e-mail dated 7 June 2007 …”
At paragraph 7 of his witness statement, Florent Arcin stated:
“I believe that I took the photographs about ten days or so after the scaffolding was taken down after the refurbishment of the flats above the shop. I took them the first time I was back at the shop after the scaffolding was gone."
As regards paragraph 6 of Florent Arcin’s witness statement: the modified fascia fell to the ground and injured the plaintiffs on 23 June 2007. If, by the expression "a few months prior to the collapse of the false fascia", Florent Arcin meant a period of some 2 to 3 months prior to that event, that would date the Arcin photographs as having been taken between about mid-March and mid-April 2007. As regards paragraph 7 of his witness statement: the scaffolding was taken down on 16 December 2006: see paragraph 20 of Thomas Hunt's witness statement (paragraph 24 above). "10 days or so after the scaffolding was taken down" would thus date the Arcin photographs at or about the end of December 2006.
There is thus an inherent tension and/or inconsistency within Florent Arcin’s own witness statement as regards the date he took the Arcin photographs. As Florent Arcin was not called as a witness at the trial, it was not possible to examine such inconsistency in the course of oral evidence.
The contemporaneous documents establish that Florent Arcin sent the Arcin photographs to Jeremy Brecknock on 7 June 2007: see paragraph 30 (10) above. In my judgement, the language Florent Arcin used in that e-mail is revealing: he wrote “I have attached some close-up of the Putney frontage. I hope this will help in some ways in the repair/claim process." Had he taken the Arcin photographs at a materially or significantly earlier date than the date when he wrote that e-mail, it would have been reasonable or sensible for him to have made it clear in his e-mail that he was attaching photographs which he had taken on an earlier date. He did not do so. In my judgement the e-mail reads as if the photographs had been taken on or very shortly before the date of the e-mail. I therefore find as a fact that the Arcin photographs were taken on or very shortly before 7 June 2007. I therefore accept the statement of Matthew Ashmore in paragraph 13 of his witness statement that “Florent Arcin was also asked to take some photographs to document the damage, which he did on or about 7 June 2007."
I should also observe that many of the prints or copies of photographs included in bundle 6, those of the Arcin photographs in bundle 2, and those of photographs included in bundle 3 (i.e. those exhibited to Mr Tutt’s report) were of such poor quality that they were of little or no practical use at trial. As a result the parties made available further and better quality prints or copies of some of the photographs in the course of the trial.
Observations by Maison Blanc of the frontage in general, and the awning box in particular, on and after 30 March 2007
At paragraph 7 of his witness statement Matthew Ashmore stated:
“I understand Cluttons viewed the problem as being with the retracting mechanism for the awning, which had moved slightly causing it to catch on the frame of the housing. I was of a different opinion, as I believe that it was the housing which had moved, but I accept that I am not a surveyor. In any event, I understood that Cluttons had agreed to get their contractor to investigate and rectify the problem. At no stage following their investigation was it suggested that the signage or awning box possessed an imminent danger ...."
At paragraph 8 of his witness statement Matthew Ashmore stated:
“There was a delay in response from the contractor and or Cluttons which led me to e-mail Jeremy again on 19 April 2007 ... I had advised Florent Arcin that the awning should not be used in its current condition and pending a repair. I thought that this was a sensible precaution given that there was obviously some problem with it. ..."
Although Matthew Ashmore stated in cross-examination by Active (DG/18) that “I would have advised Florent Arcin to inform the team not to use the awning from January onwards”, I have already found that the first time any of Maison Blanc’s employees became concerned about the operation of the awning box was shortly before the exchange of e-mails on 22 March 2007 (pages 5/1913-4): see paragraph 28 above, and thus Matthew Ashmore was mistaken as to the date of his so advising "the team" at Putney. He was similarly mistaken when he stated in paragraph 13 of his witness statement that "the damage caused in the (Arcin) photographs was identical to that observed after the scaffolding was taken down."
In his cross-examination by Active (DG/19) Matthew Ashmore stated:
“Q: What was your concern?
A: It was slightly twisted. It didn't look as it should have done, so it was not up to standard, and I felt the damage had been caused when the work to the upper elevation had been carried out by Cluttons before Christmas, and they should repair the damage to the awning box. I did not want to interfere in that process by using the awning."
At paragraph 9 of his witness statement Matthew Ashmore stated:
“Towards the end of May, I understand the response was received from R&J …”
In his cross-examination by Active (DG/21) Matthew Ashmore was asked about his understanding of the position at that time, and stated:
“A: I was expecting via Jeremy Brecknock and Cluttons that the problem with the awning would be sorted out."
In his cross-examination by Cluttons, Matthew Ashmore stated as follows (DG/27)
“Q: When you made your statement, you had the Arcin photographs with you?
A: I don't recall having them with me.
Q: Refer to paragraph 13 of your witness statement; at the time you are making your statement, did you not have the photographs with you?
A: No. I had seen them previously, but not when I made the statement.
Q: Either you remember the photographs showed what you have seen before, or you checked that the photographs showed what you have seen before?
A: I think it was the former. I had sent the photographs to Adam at D&M.
Q: Are you saying that you had not seen the Arcin photographs since June 2007?
A: I don't believe so.
In his supplemental evidence in chief (DG/15) Matthew Ashmore stated as follows:
Q: Refer to the last two sentences in paragraph 7 of your witness statement; was it ever suggested to you than the signage or warning box possessed an imminent danger?
A: No.
Q: Did it appear so to you, when you look at it?
A: No.
Q: What would you have done, if it had appeared to you to be so?
A: I would have taken all relevant precautions to make it safe; I would have closed the shop if necessary."
I found Matthew Ashmore to be an inconsistent witness; I found him to be accurate in certain general matters, but inaccurate in other matters of detail, especially as regards the timing of particular events. However I accept his evidence in respect of the following matters, and thus find as a fact:
That his concern, at all material times, was with the working or operation of the awning;
At or about the end of March 2007 (see his e-mail of 30 March 2007) he had noticed that the awning box had moved; and
He never understood or appreciated that the state or condition of the awning box, or of any other aspect of the frontage of the premises, was in a dangerous condition. If he had so understood or appreciated, he would have taken further precautions, including if necessary closing the shop until the matter was investigated and resolved.
Observations by Cluttons of the frontage in general, and the awning box in particular, on and after 30 March 2007
In his cross-examination by Maison Blanc, Thomas Hunt was asked about the e-mail which Jeremy Brecknock sent to Cluttons on 27 March 2007. He stated (DG/47):
“Q: That e-mail tells you two things: (1) there was damage to the protruding front structure; and (2) it had slipped forward?
A: Yes.
He was also asked about the Arcin photographs, and stated:
Q: These show damage to the front structure, which appears to have slipped forward?
A: Yes.
Q: So it is clear that what appears in these photographs is consistent with what you were told at the time?
A: Yes.
However, Thomas Hunt stated that he had not seen the Arcin photographs at the time of his inspection on 30 March 2007.
In paragraph 25 of his witness statement, Thomas Hunt stated as follows:
“As to the complaint about the awning, from the e-mail Mr Brecknock had sent, and from my subsequent discussions with the manager of the shop, I understood Maison Blanc’s concern was that the awning was not retracting properly. During my visit to the property on 30 March 2007, I watched the awning being opened and retracted by the shop staff. I could see that the awning was catching on the left hand side of the box housing as it was retracting ... and at this edge was slightly torn ...."
Then, as regards what he was directed to see by the shop manager, and what he did in fact see, Thomas Hunt stated in his cross-examination by Maison Blanc (DG/49-51) as follows:
“Q: There are three possibilities when you go and look: (1) either what Jeremy Brecknock says is inaccurate; or (2) what Jeremy Brecknock says is accurate; or (3) you don't know?
A: Yes.
Q: When you get back to the office, if it was (1) you should have said so?
A: Yes
Q: And if it was (2) you should have said so?
A: Yes
Q: And you didn't do either?
A: Yes.
Q: I suggest there was damage, and the awning box had slipped forward, and that was visible on 30 March 2007?
A: I do not recall seeing that on the 30 March 2007. I did not see anything protruding from the awning on my visit on 30 March 2007.
Q: Refer to paragraph 25 of your witness statement, and your understanding: in the first line you are referring to the awning alone, and not to its structure; and you are not referring to it having slipped forward? What happened is that you got diverted to cosmetic issues, and ignored or forgot what Jeremy Brecknock had been saying?
A: Not so. When I got there I spoke to the shop manager, and said I understood there had been an issue with the front awning, and he directed me to the front of the shop, where he showed me the awning retracting inwards and outwards, and where it was catching on the frame.
Q: So your understanding of Maison Blanc’s complaint was that it was a cosmetic issue, and to do with retraction of the awning?
A: Yes.
Q: And that it was not a structural issue?
A: Yes.
Q: Nor a health and safety issue?
A: No.
Q: And that it was effectively a cosmetic issue?
A: Yes.
47. Then, as regards his subsequent sight of the Arcin photographs on 7 June 2007, at paragraph 30 of his witness statement Thomas Hunt stated:
“I have been shown photographs taken by Mr Arcin … which are said to show the condition of the front of the property in or about March 2007. At the time of my visit to investigate Maison Blanc’s complaint, I did not notice and do not believe there was any obvious sign of impact or other damage to either the fascia or the awning and do not believe the front of the property was in the condition shown in Mr Arcin’s photographs."
In paragraph 32 of his witness statement he further stated:
“I was contacted again by Jeremy Brecknock … on 7 June 2007. (He) e-mailed me copies of the photographs … which Mr Brecknock said showed clear evidence of the damage that R&J had caused."
In his cross-examination by Maison Blanc Thomas Hunt stated (DG/54-5) as follows:
Q: Refer to paragraph 32 of your witness statement. Did you look at these photographs?
A: Yes
Q: But you don't say ‘Good grief: these photographs show a state of play inconsistent with my observations, and a marked deterioration?
A: Well, I said that to Mr Brecknock.
Q: Where do you say that in your witness statement?
A: I don't.
Q: The reason you don't is that they don't show a marked deterioration. They are wholly consistent with what you had seen?
A: I don't agree.
Q: If these photographs had shown deterioration, it would have been a marked deterioration on your evidence?
A: Yes.
…
Q: And it follows that you would have raised an alarm?
A: Which is what I did.
Q: No; you did not.
A: I spoke to Jeremy Brecknock and said there was nothing we could do, because it was not our responsibility.
Q: Are you asking the court to accept that, when you saw these photographs and saw a marked deterioration, that your reaction to that was to tell Jeremy Brecknock that it was not your responsibility?
A: I said there was nothing any of us could do. I remember being rather alarmed at what I saw."
Thomas Hunt is a relatively young man: he took a degree in building surveying at Reading University in June 2004, and began work with Cluttons three months or so later (DG/44). His job with Cluttons was thus his first job after qualification. When he became involved with the work which R&J were carrying out the first floor and the exterior, he thus had about two years postgraduate experience. As regards his evidence, I make the following findings of fact:
Although he had read Jeremy Brecknock's e-mail to Einar Roberts before he attended the premises on 30 March 2007, and thus initially understood that the e-mail reported damage to "the protruding front structure" (i.e. the awning box), and that the awning box had slipped forward, when he attended the premises he focused his inspection on the operation of the awning itself, rather than carrying out an examination of the awning box.
When he attended the premises on 30 March 2007 he did not carry out any inspection of the general frontage of the premises.
His initial observation and analysis of the problem was as set out in his e-mail of 2 April 2007, namely that the retraction mechanism within the awning box “has moved slightly. This is causing the awning to catch on the side of its frame and therefore is unable to fully retract back into its original position."
Two months or so later, when he saw the Arcin photographs on 7 June 2007, he appreciated they depicted a marked deterioration in the situation from that which he had previously understood or appreciated to be the case. However, he did not make that point clearly, or at all, to Jeremy Brecknock when he spoke to him on 7 June 2007. Instead his observation and/or advice to Jeremy Brecknock was that Maison Blanc should get its own contractor to inspect. I reject Thomas Hunt's assertion in the course of his cross-examination (DG/54) that he told Jeremy Brecknock that the situation shown in the Arcin photographs was inconsistent with what he had seen in the course of his inspection on 30 March 2007.
I also reject Thomas Hunt's assertion that in the course of his telephone conversation with Jeremy Brecknock on 7 June 2007 he "said there was nothing we could do, because it was not our responsibility". Such an assertion is quite inconsistent with the text of his contemporaneous attendance note set out at paragraph 30 (11) above. In my judgement, had Thomas Hunt made such a statement to Jeremy Brecknock, he would at the very least have recorded it, either in the form of an e-mail, or perhaps more appropriately in a more formal letter to Maison Blanc; he did neither.
Evidence about the frontage in general, and the awning box in particular, on or about 30 March 2007
The engineers were agreed that the Cluttons photographs, taken while the work to the first floor and exterior was being carried out by R&J, “ show that the top right-hand corner of the awning box had drooped down by then": see paragraph 69 of the engineers’ joint statement at page 3/1444; see also the blown up section of the photograph at page 3/1374, the photographs at page 6/2030 and page 2/545; and also Mr Price’s evidence in cross-examination (DG/73) where he stated:
Q: Refer to the photograph at page 2/545: are you able to tell anything from this?
A: It appears to show the same thing: close to the right-hand end of the awning box there is a slight increase in the width of that gap.
Q: What can you see in the photograph at page 6/2030?
A: It does confirm the same thing. The gap between the top of the awning box and the underside of the sign is very consistent and parallel all the way along, until you get very close to the right-hand side, where the top of the awning box appears to start to drop, and the gap becomes wider."
The engineers were also agreed that the Arcin photographs show that, at its right-hand end, the awning box had come away from the surrounding render. See paragraph 68 of their joint statement at page 3/1444, where they stated:
“Damage to the ends of the awning box, and separation of the tapered end cover at the right-hand end of the modified fascia from the render surround of the inclined facade, are visible in photographs by Florent Arcin ..., the dates of these photographs are unknown."
As regards the left-hand end of the awning box, Mr Price stated in the course of his cross-examination by Cluttons (DG/96) as follows:
“Q: Refer to the photograph at page 6/2030: is there any damage to the left-hand edge of the awning?
A: It looks as though what should be a vertical side of the left-hand edge of the awning box, it looks as if the bottom edge is splaying out to the left i.e. it is not vertical, as is the sign above."
At paragraph 5.11 of their joint statement, the surveyors posed the following questions (page 4/1665g):
“Did Cluttons fail to undertake any adequate investigation on 30 March 2007 so as to determine the underlying causes of the movement/deformity that was evident in the shopfront? ... Did Cluttons on 30 March fail to investigate what had happened to the supporting structure? ... Did Cluttons fail to ascertain what steps were required to prevent further collapse and to restore the integrity of the shop front ...?
They stated their answers to those questions as follows:
“A Cluttons 30 March 2007 inspection in response to the Maison Blanc complaint may have created a position of reliance by Maison Blanc. It was agreed that the extent of Cluttons duties arising from their inspection was a matter for the court.
B. Should the fault to the awning seen on 30 March 2007 have been minor, and reasonably able to be attributable to mechanical operation, Cluttons actions in requesting inspection from R&J were reasonable. However, this was a practical step for Cluttons to take following Maison Blanc’s complaint and it is for the court to decide the responsibilities of Cluttons in this scenario.
C. Should the fault to the awning seen on 30 March 2007 have been as the condition in Mr Arcin’s photographs, Cluttons should have recognised that there was movement of the awning and further risk. ...
D. The condition of the front of the property, and in particular the support framing, on March 30 is a matter for expert engineering opinion and witness statements. Catching and tearing of the awning suggested that there may have been prior to March 30 some distortion of the awning mechanism or the mechanism fixing to the awning boxing. The ascertaining of any steps to prevent further collapse would require an identifiable reason for anticipating a collapse within the shop front and awning supporting boxings. To anticipate this would require sufficient external evidence of fault within the support construction or framing."
In his cross-examination by Active, Mr Tutt was asked about the Arcin photographs. He stated (DG/111):
“Q: Refer to the Arcin photographs at page 2/511-13.
A: These are similar in quality to those we saw when we had our discussion.
Q: Regarding the dropping of the awning box: how does that relate to the gap shown in the Arcin photographs? Is it broadly similar or not?
A: It is broadly similar. One cannot be quantitative about this, but the distortion is the same.
Q: In his e-mail to Cluttons, Jeremy Brecknock had reported that the awning housing had slipped forward. Look at the Arcin photograph at page 2/511: does that show any forward movement of the housing?
A: I would say: yes. If you look at the triangular infill piece, there has been separation at the rear of the piece, which I consider shows some forward movement."
Based on that evidence, and the contemporaneous documentary evidence to which I have already referred, I make the following findings of fact:
The Cluttons photographs depict a discernible drop (or droop) to the right-hand end of the awning box.
Photograph 2/511 of the Arcin photographs depicts the right-hand end of the awning box as having come away from the surrounding render.
Photograph 2/513 of the Arcin photographs depicts damage to the left-hand end of the awning box, in particular that the bottom of the left-hand edge of the awning box had splayed out to the left.
The damage shown in the Arcin photographs was consistent with the description given by Jeremy Brecknock in his e-mail of 27 March 2007 that there was "damage to the protruding front structure which houses the awning. It appears that the unit has slipped forward …”. I construe Jeremy Brecknock's reference to "the protruding front structure which houses the awning" as being a reference to the awning box.
I therefore find that the damage depicted in the Arcin photographs was also apparent on 30 March 2007, either entirely so, or to a materially similar extent.
In those circumstances, I therefore accept Mr Tutt's opinion expressed in paragraph 48 of his report (page 3/1865) where he states:
“… when the MB complaints regarding a problem with the awning were inspected by Cluttons surveyor on 30 March 2007 … he should have observed the disturbance to the ends of the awning housing and the apparent dropping of the fascia and cover above ... I would have expected the Cluttons surveyor to have then advised that further investigation of the fascia be undertaken …”
Thomas Hunt did not observe such disturbance to the two ends of the awning box, nor the dropping or drooping of the fascia and cover above. In my judgement such omissions were the product of relative inexperience, exacerbated by him permitting his attention to be diverted towards or focused upon the operation of the awning itself, rather than towards the state or condition of the awning box.
Active’s defence to Maison Blanc’s claim in contract
Active’s primary case is that there was, on the facts, a break in the chain of causation: see Active’s written closing submissions in paragraphs 2.3 to 2.11. That was reflected in Mr Matthews’ oral closing submissions (DG/164).
Active’s secondary case is that there was contributory negligence on the part of Maison Blanc; in this context Active also submitted that its prior breach of contract was properly to be classified as a ‘category 3’ type of breach rather than a ‘category 1’ type of breach as explained in Barclays Bank v Fairclough [1995] QB 214. See Active’s written closing submissions at paragraph 2.12.
As regards Active’s primary case (break in the chain of causation), as summarised at paragraph 19 of Maison Blanc’s written closing submissions, Active sought to establish three matters of fact against Maison Blanc: that the awning and sign assembly had moved; that Maison Blanc were under a duty to investigate the supporting structure; and that Maison Blanc ought to have known that the awning, sign and modified fascia were hazardous.
As regards the relevant legal test, both Mr Wilmot-Smith QC and Mr Matthews referred me to the judgement of Gross LJ in Borealis AB –v- Geogas Trading SA [2010] EWHC (Comm) 2789 at [42] to [50]. In Borealis Gross LJ held as follows:
Causation: I start with causation, extensively debated by counsel when addressing the Geogas secondary case (Issue (I)). The specific focus was the test for breaking the chain of causation. My approach, distilled from the submissions of counsel and the authorities cited, is summarised in the paragraphs which follow.
First, although an evidential burden rests on the defendant insofar as it contends that there was a break in the chain of causation, the legal burden of proof rests throughout on the claimant to prove that the defendant's breach of contract caused its loss.
Secondly, in order to comprise a novus actus interveniens, so breaking the chain of causation, the conduct of the claimant "must constitute an event of such impact that it 'obliterates' the wrongdoing…" of the defendant: Clerk & Lindsell on Torts (19th ed.), at para. 2-78. The same test applies in contract. For there to be a break in the chain of causation, the true cause of the loss must be the conduct of the claimant rather than the breach of contract on the part of the defendant; if the breach of contract by the defendant and the claimant's subsequent conduct are concurrent causes, it must be unlikely that the chain of causation will be broken. In circumstances where the defendant's breach of contract remains an effective cause of the loss, at least ordinarily, the chain of causation will not be broken: County Ltd v Girozentrale [1996] 3 All ER 834, at p. 849 b-c, per Beldam LJ and at pp. 857 f-g and 858 b-c, per Hobhouse LJ (as he then was). Other examples can be found in the area of shipping law. Where, in breach of charterparty, charterers order a vessel to proceed to an unsafe port, the conduct of the vessel's master in obeying the order (placed as he well may be, on the horns of a dilemma) will be judged sympathetically, in context and will not lightly be treated as unreasonable: Compania Naviera Maropan v Bowaters (The "Stork") [1955] 2 QB 68. But even negligent navigation following the charterer's order to proceed to an unsafe port will not necessarily break the chain of causation: see, for example, The Polyglory [1977] 2 Lloyd's Rep. 353, at p.366. Conversely, where the negligence of vessel X caused vessel Y to run aground, vessel X was not liable for such damages as were attributable to the subsequent, clearly separate and negligent re-floating of vessel Y: The "Spontaneity" [1962] 1 Lloyd's Rep 460; the negligence of vessel X had ceased to be operative.
Thirdly, it is difficult to conceive that anything less than unreasonable conduct on the part of the claimant would be capable of breaking the chain of causation. It is, however, also plain that mere unreasonable conduct on a claimant's part will not necessarily do so – for example where the defendant's breach remains an effective cause of the loss, albeit in combination with the claimant's failure to take reasonable precautions in its own interest: see, for example, County Ltd v Girozentrale, per Beldam LJ (loc cit). By its nature, reckless conduct by the claimant would or would ordinarily break the chain of causation, though there is no rule of law that only recklessness on the part of the claimant will do so: Lambert v Lewis [1982] AC 225, per Roskill LJ (as he then was) in the Court of Appeal, at p.252; County Ltd v Girozentrale (supra), per Hobhouse LJ at p. 857, more conveniently discussed below, when dealing with the claimant's knowledge or lack of it.
Fourthly, the claimant's state of knowledge at the time of and following the defendant's breach of contract is likely to be a factor of very great significance. For the chain of causation to be broken, the claimant need not have knowledge of the legal niceties of the breach of contract; nor, as it seems to me, will the chain of causation only be broken if the claimant has actual knowledge that a breach of contract has occurred – otherwise there would be a premium on ignorance. However, the more the claimant has actual knowledge of the breach, of the dangerousness of the situation which has thus arisen and of the need to take appropriate remedial measures, the greater the likelihood that the chain of causation will be broken. Conversely, the less the claimant knows the more likely it is that only recklessness will suffice to break the chain of causation. Ready illustrations are furnished by the authorities:
In the sad case of Lambert v Lewis (supra), the farmer could no longer rely on the dealer's warranty in the factual circumstances graphically outlined by Lord Diplock (at pp. 276 – 277):
"….I would accept that in the case of the coupling the warranty was still continuing up to the date, some three to six months before the accident, when it first became known to the farmer that the handle of the locking mechanism was missing. Up to that time the farmer would have had a right to rely upon the dealers warranty as excusing him from making his own examination of the coupling to see if it were safe…..After it had become apparent to the farmer that the locking mechanism of the coupling was broken, and consequently that it was no longer in the same state as when it was delivered, the only implied warranty which could justify his failure to take the precaution either to get it mended or at least to find out whether it was safe to continue to use it in that condition, would be a warranty that the coupling could continue to be safely used to tow a trailer on a public highway notwithstanding that it was in an obviously damaged state. My Lords, any implication of a warranty in these terms needs only to be stated, to be rejected…..In the state in which the farmer knew the coupling to be at the time of the accident, there was no longer any warranty by the dealers of its continued safety in use on which the farmer was entitled to rely.
……The farmer's liability arose, not from the defective design of the coupling but from his own negligence in failing, when he knew that the coupling was damaged, to have it repaired or to ascertain if it was still safe to use. The issue of causation, therefore, on which the farmer's claim against the dealers depended, was whether his negligence resulted directly and naturally, in the ordinary course of events, from the dealers' breach of warranty. Manifestly it did not."
In the unreported case of Schering Agrochemicals Ltd v Resibel NVSA [1992] CA Transcript 1298, the defendants were employed by the plaintiffs to provide safety devices to guard against the known risk of fire. The safety devices were defectively designed and did not provide that protection. The result, on the 30th September, 1987, was a serious fire. However, on the 8th September, so some three weeks earlier, there had been very small fire, which disclosed to the plaintiffs that the safety device did not work. Both the eminent Judge at first instance (Hobhouse J, as he then was) and the Court of Appeal (Purchas LJ and Nolan and Scott LJJ, as they then were) held that the defendants were not liable in respect of the loss occasioned by the 30th September fire. Their reasons for doing so differed, spanning a break in the chain of causation, a failure to mitigate and remoteness of damage. It is unnecessary to explore those differences of reasoning here. The striking feature of Schering was that the 8th September incident was sufficient to disclose to the plaintiffs that a breach of contract had occurred and made it reasonable to expect the plaintiffs to take appropriate steps to minimise the consequences. A highly dangerous situation had been revealed; the production line ought to have been stopped so that a proper investigation could take place. It may further be noted that, as in Lambert v Lewis (supra), the plaintiffs' knowledge of the breach and the need to address it took place some period of time before the later incident in respect of which the (bulk of) the damages were claimed. On the facts of the case, viewed as a matter of causation, the plaintiffs' failure to do what was reasonable "…destroyed the further causative potency of the pre-existing breach of contract…": Hobhouse LJ, explaining Schering, in County Ltd v Girozentrale (supra), at p.858. Even though the warning on the 8th September had been "purely fortuitous" (Nolan LJ, at p.16 of the Schering transcript), the defendants were entitled to pray it in aid.
By contrast with Lambert v Lewis and Schering, the plaintiff in County Ltd v Girozentrale (supra) did not know of the defendant's breach of contract. This case concerned a share issue. The plaintiff bank agreed to underwrite a placement of the shares; the defendant brokers made representations to potential investors outside and in breach of the terms of the engagement letter; for its part, the bank failed to check on the status of indicative commitments obtained by the chairman of the company. In the event, a significant number of shares were not taken up, leaving the bank with a loss. The Court of Appeal held that the bank was entitled to recover its loss from the brokers. In so doing, the Court of Appeal reversed the decision of the trial Judge who had held, inter alia, that "the brokers' representations were not of equal efficacy with the bank's decision to accept the quality of the indicative commitments…without making proper inquiries" (see, the head note, at p.834). Against this background, Hobhouse LJ said this (at p.857 b-d):
" Where a plaintiff does not know of a defendant's breach of contract and where he is entitled to rely upon the defendant having performed his contract, it will only be in the most exceptional circumstances that conduct of the plaintiff suffices to break the causal relationship between the defendant's breach and the plaintiff's loss.
The plaintiffs' conduct was not voluntary in the sense of being undertaken with a knowledge of its significance. Conduct which is undertaken without an appreciation of the existence of the earlier causal factor will normally only suffice to break the causal relationship if the conduct was reckless. It is the character of reckless conduct that it makes the actual state of knowledge of that party immaterial. …"
For completeness, I do not, with respect, read these observations of Hobhouse LJ as furnishing support for any rule of law that only reckless conduct will serve to break the chain of causation. Instead, these observations are authority for a more limited proposition: namely, that in circumstances where the claimant is unaware of the defendant's breach of contract "normally" (i.e., not invariably) only recklessness will suffice. As such the good sense of the rule is difficult to gainsay and its compatibility with rules governing mitigation of damage is apparent.
Fifthly and ultimately, the question of whether there has been a break in the chain of causation is fact sensitive, involving as it does a practical inquiry into the circumstances of the defendant's breach of contract and the claimant's subsequent conduct. As Roskill LJ observed, in Lambert v Lewis (loc cit), it is "always a question of degree at what point the damage claimed for ceases to flow naturally and directly from the breach". For my part, I respectfully agree with the observations of Evans-Lombe J, in Barings Plc v Coopers & Lybrand [2003] EWHC 1319 (Ch), at [838], where he expressed an unwillingness to accept any all-embracing test for what may constitute the breaking of the chain of causation:
" …It seems to me that what will constitute such conduct is so fact-sensitive to the facts of any case where the issue arises that it is almost impossible to generalise. If one must do so, I would say that it must be some unreasonable conduct, not necessarily unforeseeable….., a new cause coming in and disturbing the sequence of events….., not necessarily reckless….., which may result from an accumulation of events which in sum have the effect of removing the negligence sued on as a cause….., which accumulation of events may take place over time…."
I would add too that while the authorities of course provide guidance, they are not to be read as statutes.
Remoteness: This topic can be taken very shortly indeed. First, because as already underlined it is raised by Geogas only in respect of two discrete areas of dispute. Secondly, because the "orthodox approach" (Hamblen J in Sylvia Shipping Co Ltd v Progress Bulk Carriers Ltd (The Sylvia) [2010] EWHC 542 (Comm); [2010] 2 Lloyd's Rep. 81; at [20] et seq) based upon Hadley v Baxendale (1854) 9 Ex 341 and Czarnikow v Koufos (The Heron II) [1969] 1 AC 350 has been settled for so long. As succinctly formulated by Lord Reid in The Heron II, at pp. 382 - 3, was the loss of a kind which the defendant at the time of the contract ought to have realised was "not unlikely" to result from the breach - meaning "a degree of probability considerably less than an even chance but nevertheless not very unusual and easily foreseeable"? Thirdly, because if and to the extent that, with respect, the speeches of Lords Hoffmann and Hope in Transfield Inc v Mercator Shipping Inc (The Achilleas) [2008] UKHL 48; [2009] 1 AC 61 have added "assumption of responsibility" as an additional requirement of the remoteness rule in some cases (so that a loss even if "not unlikely to result" might still be too remote if the defendant had not assumed responsibility for that type of loss), the orthodox approach continues to apply in the "great majority of cases" - as Lord Hoffmann's and Lord Hope's observations themselves make clear: see, The Achilleas, at [9], [11] and [36]; see too, the valuable discussion to be found in Hamblen J's judgment in The Sylvia (supra), at [20] – [51]. There are, in my judgment, no exceptional circumstances in the present case calling for specific consideration of the "assumption of responsibility" test. Fourthly, because, looking ahead, I cannot see that the application of Lord Hoffmann's test (whether a party would reasonably be regarded as having assumed responsibility for the type of losses in question) to the issues in dispute here would realistically produce a different outcome to that flowing from the application of the orthodox approach. For present purposes, it is therefore unnecessary to say more as to the law on remoteness.
Mitigation: Mitigation was relevant both to the Geogas secondary case and to the discrete point as to the unavailability of the cavern. As it is so well settled and was not in dispute before me, the law here can likewise be taken very shortly. A convenient starting point is to be found in the judgment of Sir John Donaldson MR in The "Solholt" [1983] 1 Lloyd's Rep. 605, at p. 608:
" A plaintiff is under no duty to mitigate his loss, despite the habitual use by the lawyers of the phrase 'duty to mitigate'. He is completely free to act as he judges to be in his best interests. On the other hand, a defendant is not liable for all loss suffered by the plaintiff in consequence of his so acting. A defendant is only liable for such part of the plaintiff's loss as is properly to be regarded as caused by the defendant's breach of duty. As Viscount Haldane, LC, put it in British Westinghouse Electric and Manufacturing Co. Ltd v Underground Electric Railways Co. of London Ltd., [1912] AC 673 at p.689:
'The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach; but this first principle is qualified by a second, which imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps.'
……
Whether a loss is avoidable by reasonable action on the part of the plaintiff is a question of fact not law. This was decided in Payzu Ltd v Saunders [1919] 2 KB 581."
For present purposes, it is only necessary to add the following. First, the onus of proof on the issue of mitigation is on the defendant: McGregor on Damages (18th ed.), at para. 7-019. Secondly, the conduct of the innocent party should not be "weighed in nice scales at the instance of the party whose breach of contract has occasioned the difficulty": per Lord Macmillan in Banco de Portugal v Waterlow [1932] AC 452, at p. 506. Immediately thereafter (ibid), Lord Macmillan said this:
" It is often easy after an emergency has passed to criticise the steps which have been taken to meet it, but such criticism does not come well from those who have themselves created the emergency. The law is satisfied if the party placed in a difficult situation by reason of the breach of a duty owed to him has acted reasonably in the adoption of remedial measures, and he will not be held disentitled to recover the cost of such measures merely because the party in breach can suggest that other measures less burdensome to him might have been taken."
Gross LJ thus identified five matters which a party seeking to establish that a break in the chain of causation has occurred must establish:
The first matter deals with the different evidential and legal burdens on the respective parties.
The nature of the claimant's conduct has to be of such a character that it "obliterates" the prior breach by the defendant.
The claimant's conduct has to be at least unreasonable (though that may not of itself suffice); reckless conduct will ordinarily suffice to break the chain of causation.
The claimant's state of knowledge is a factor of central importance. It is thus highly relevant whether the claimant knew of (a) the breach of contract; (b) the dangerousness of the situation; and (c) the need to take remedial measures: see paragraph 46.
The ultimate question will always be fact sensitive.
One of the cases to which Gross LJ referred in formulating the fourth of those matters was Schering. Active relied on the judgement in Schering to submit that the relevant test was that a simple failure to take reasonable care would suffice: see paragraph 20 of Active’s written closing submissions. However, in my judgement, the common theme between the gist of Gross LJ’s judgement in Borealis and the gist of Hobhouse J’s judgement in Schering is the need for a proper analysis of the facts as a matter of causation. I do not regard any distinction (if there be) between Gross LJ’s analysis of conduct (unreasonable conduct at least, and probably recklessness) and Hobhouse J’s analysis of conduct (an unreasonable failure to take care) as being critical or determinative of the ultimate analysis. What is crucial and determinative of the ultimate analysis is the common approach to causation. See in this regard the finding by Hobhouse J that the claimant's failure to do what was reasonable in Schering “destroyed the further causative potency of the pre-existing breach of contract”, as cited by Gross LJ in paragraph 46 (ii) of his judgement in Borealis.
Applying the fourth of those tests as formulated by Gross LJ to the facts of the present case, I make the following findings of fact:
As regards knowledge of Active’s prior breach of contract: I find that Maison Blanc did not know about any details or particulars of such a breach of contract by Active; all Maison Blanc knew was that the awning box had slipped and/or moved. In fact Maison Blanc thought at the time (wrongly as it turned out) that this was the fault of R&J.
As regards knowledge of the dangerousness of the situation: Matthew Ashmore's oral evidence at trial was to the effect that he had never been warned or alerted to the fact that the situation was dangerous, and that if he had he would have taken all appropriate remedial measures. While Maison Blanc was generally concerned about the problems with the working of the awning, at no material time did they know or appreciate that the situation was dangerous.
As regards knowledge of the need to take remedial measures: as above, while Maison Blanc had a general concern about the problems of the working of the awning, such concerns fell short of any understanding that the situation was dangerous. As a result Maison Blanc was unaware of the need to take any or any relevant remedial measures.
I therefore reject Active’s primary case in defence to Maison Blanc’s claim in contract.
As regards Active’s secondary case in defence to Maison Blanc’s claim in contract: I accept Maison Blanc’s submission (see paragraph 73 of Maison Blanc’s written closing submissions) that Active’s breach of contract fell within the definition of a ‘category 1’ type of breach as explained in Barclays Bank v Fairclough [1995] QB 214.
In Barclays Bank v Fairclough Beldam LJ held at page 228:
“These arguments have lead courts to classify contractual duties under three headings: (i) where a party’s liability arises from breach of a contractual provision which does not depend on a failure to take reasonable care; (ii) where the liability arises from an express contractual obligation to take care which does not correspond to any duty which would exist independently of the contract; (iii) where the liability for breach of contract is the same as, and coextensive with, a liability in tort independently of the existence of a contract. This analysis was adopted by Hobhouse J in Vesta v Butcher …
… in category (i) cases there is no decision in which contributory negligence has been held to be a partial defence. There are powerful dicta to the effect that it cannot be ...
The defendants argument that, because the plaintiff owed duties to its employees, it was therefore under a duty in its own interest to see that the defendant fulfilled its obligations under the contract, is inconsistent with many cases in which it has been held that employers and others liable to third parties for failure of plant and equipment are entitled to rely on warranties given by their suppliers …
… in the present state of the law contributory negligence is not a defence to a claim for damages founded on a breach of a strict contractual obligation.”
Simon Brown LJ held at page 231 as follows:
“The central issue raised by this appeal is clearly one of some importance: when does section 1 (1) of the Law Reform (Contributory Negligence) Act 1945 apply to actions in contract? Although I agree entirely with the judgement of Beldam LJ, I wish … to indicate something of my own approach.
…
I … would accept Hobhouse J's view expressed in Vesta v Butcher … that apportionment of blame and liability is open to the court in any ordinary category (iii) case, unless the parties by the contract have varied that position …
But when, as in a category (i) case, the contractual liability is by no means immaterial, when rather it is a strict liability arising independently of any negligence on the defendant's part, then there seemed to me compelling reasons why the contract, even assuming it is silent as to apportionment, should be construed as excluding the operation of the Act of 1945. The very imposition of strict liability on the defendant is to my mind inconsistent with an apportionment of the loss.
…
Is this contract ready to be construed so that the defendant is advantaged by an assertion of its own liability in nuisance or trespass as well as in contract? Are we to have trials at which the defendant calls an expert to implicate him in tortious liability, whilst the plaintiff’s expert seeks paradoxically to exonerate him? The answer to all these questions is surely ‘no’."
In my judgement a like analysis obtains in the present case. Active’s breach of contract is properly to be classified as a ‘category 1’ type of breach, and for that reason it is not open to Active to contend that its liability falls to be diminished by any finding of contributory negligence on the part of Maison Blanc. As Ramsay J stated in Hi-Lite Electrical Ltd v Wolseley UK Ltd [2011] EWHC 2153 (TCC) in the passage of his judgement where he dealt with the issue of apportionment (i.e. between paragraphs 216 and 238) the general principle is that " … contributory negligence is not a defence to strict contractual liability …”. I do not find there is anything about the facts of the present case that would justify a departure from that general principle. I therefore reject Active’s secondary case in defence to Maison Blanc’s claim in contract.
As regards Maison Blanc’s claim for contribution under the 1978 Act: Active does not dispute that it and Maison Blanc would each have been found liable to the claimants, and thus it and Maison Blanc “… are liable to apportionment between them”: see paragraph 4.1 of Active’s written closing submissions, albeit that Active cast that paragraph also with reference to Cluttons.
Maison Blanc’s submission is that, if it succeeds in its claim for an indemnity and/or damages for breach of contract against Active, then its further claim for contribution under the 1978 Act becomes academic: see paragraphs 97-8 of its written closing submissions. In any event, Maison Blanc submits that it is entitled to recover 100% contribution from Active under the 1978 Act.
Active submits, as regards the assessment of contribution under the 1978 Act, that "the overwhelming majority of the liability must be apportioned to those responsible for the failures to act in 2007": see paragraph 4.2 of Active’s written closing submissions.
In my judgement, given the findings of fact that I have made above, in particular those paragraphs 43 and 62 above, I find that Maison Blanc is entitled to recover a 100% contribution from Active in respect of Maison Blanc’s liability to the claimants. Had I found that Maison Blanc was entitled to recover a lesser contribution from Active, I would have accepted Maison Blanc’s further submission that, in light of Maison Blanc’s entitlement to recover damages amounting to an indemnity from Active for breach of contract, then Maison Blanc’s entitlement to recover contribution in a lesser sum would have become academic.
Maison Blanc’s direct claim in negligence against Cluttons
Cluttons dispute that, in the circumstances of this case, they owed Maison Blanc a duty of care. It is thus necessary to examine the relevant facts, identify the relevant principles of law, and decide whether (a) Cluttons owed Maison Blanc a duty of care, and if so what was the nature of that duty; (b) whether Cluttons was in breach of such duty; and if so (c) whether Maison Blanc has suffered relevant loss and damage as a result.
The key evidence as regards the first issue, namely whether Cluttons owed Maison Blanc a duty of care, is to be found in: (a) the request made by Maison Blanc to Cluttons to attend the premises and investigate the matters which Maison Blanc had reported: see Jeremy Brecknock's e-mail to Einar Roberts of 27 March 2007, set out in paragraph 27 (3) above; (b) the acceptance or agreement by Cluttons to do so: see Einar Roberts’ response to Jeremy Brecknock; and (c) the very fact that Thomas Hunt thereafter immediately attended the premises to carry out such an investigation.
It is convenient at this point to repeat the questions which the expert surveyors posed in paragraph 5.11 of their joint statement, and the answers they gave (page 4/1665g):
“Did Cluttons fail to undertake any adequate investigation on 30 March 2007 so as to determine the underlying causes of the movement/deformity that was evident in the shopfront? ... Did Cluttons on 30 March fail to investigate what had happened to the supporting structure? ... Did Cluttons fail to ascertain what steps were required to prevent further collapse and to restore the integrity of the shop front ...?
Their answers were as follows:
“A Cluttons 30 March 2007 inspection in response to the Maison Blanc complaint may have created a position of reliance by Maison Blanc. It was agreed that the extent of Cluttons duties arising from their inspection was a matter for the court.
B. Should the fault to the awning seen on 30 March 2007 have been minor, and reasonably able to be attributable to mechanical operation, Cluttons actions in requesting inspection from R&J were reasonable. However, this was a practical step for Cluttons to take following Maison Blanc’s complaint and it is for the court to decide the responsibilities of Cluttons in this scenario.
C. Should the fault to the awning seen on 30 March 2007 have been as the condition in Mr Arcin’s photographs, Cluttons should have recognised that there was movement of the awning and further risk. ...
D. The condition of the front of the property, and in particular the support framing, on March 30 is a matter for expert engineering opinion and witness statements. Catching and tearing of the awning suggested that there may have been prior to March 30 some distortion of the awning mechanism or the mechanism fixing to the awning boxing. The ascertaining of any steps to prevent further collapse would require an identifiable reason for anticipating a collapse within the shop front and awning supporting boxings. To anticipate this would require sufficient external evidence of fault within the support construction or framing."
Mr Tuffin was called as an expert witness on behalf of Cluttons. He has “over 40 years of experience in surveying, building pathology and defect diagnosis and in the specification and contract administration for the development, repair and refurbishment of buildings in residential, retail, leisure commercial and industrial sectors": see paragraph 2.06 of his report at page 4/1583. He became FRICS in 1979 (DG/140). He also “served as president of the Royal Institution of Chartered Surveyors during 2007 and 2008”.
In his cross-examination by Maison Blanc, Mr Tuffin stated (DG/143-4):
“Q Is it your opinion that the ordinary reasonably competent surveyor would have identified the dip?
A: It depends what you mean by ‘identified’; he would have noticed it. What puts a surveyor on alert is any sudden change in circumstances.
Q: We know that Thomas Hunt was advised of a change to the protruding front structure, and that it had moved forward. Would the ordinary reasonably competent surveyor, who had been informed that there was damage to this front structure, have identified the drop or droop on the right hand side?
A: He may not have tied the two together, because on attending a site he had a conversation with the staff, who described what the problem was.
Q: Would you expect the ordinary reasonably competent surveyor, having received the e-mail of 27th of March, and being told by the shop staff that there was an issue with the operation of the awning, to have identified the drop on the right-hand side?
A: This comes back to the surveyor noticing a change, not the fact that a drop exists.
…
Q: Thomas Hunt says he looked around and there was no danger to be seen. Do the photographs assist you in ascertaining if he made an adequate examination?
A: I can't say what he saw. I revert to what I said about change.
Q: Would the ordinary reasonably competent surveyor, on attending, seek to establish if there was any significant structural issue?
A: That would be his initial intention. It would not mean he would find the evidence he was looking for.
Q: At the very least, you would have to establish if Jeremy Brecknock was right or wrong in describing damage to the awning box?
A: No. He would have to revert to Jeremy Brecknock, and tell him what he had found, and what he intended to do."
Mr Freeman (who was called as an expert surveyor by Maison Blanc) stated in the course of his cross-examination by Active (DG/126-7):
“Q: Refer to Thomas Hunt's e-mail of 2 April 2007; having looked at the photographs, and knowing that there was binding on the left-hand edge of the awning box, and the position at the right-hand edge, was this document a reasonable report for a surveyor to have written in those circumstances?
A: I don't believe this is sufficient, or written soon enough, to have addressed the problem as it was at that time.
Q: What report would you expect the ordinary reasonably competent surveyor to have made?
A: I would have expected photographs, notes of what was found, and a recommendation of at least how the matter should be investigated further, and how the problem might be resolved thereafter; i.e. just a greater degree of accuracy on what was seen."
In the course of his cross-examination by Maison Blanc, Mr Price (called as an expert engineer on behalf of Active) stated as follows (DG/76):
“In my experience, surveyors are well capable of seeing cracks, and the opening out of joints such as you see in this case; and they would normally make a judgement whether they are themselves able to determine the cause of that, or whether another specialist should be engaged to determine the cause."
Mr Tutt (who was called as an expert engineer on behalf of Maison Blanc) stated in paragraph 4.8 of his report (page 3/1065):
“I would have expected the Cluttons surveyor to have advised that further investigation of the fascia be undertaken. Mr Hunt did in fact request R&J to investigate the awning, but as a result of confusion … nothing was actually done."
Mr Tutt was asked about that in the course of his cross-examination by Active (DG/114) and stated:
“Q: You say that a further investigation should have been undertaken; what sort of investigation?
A: I am not a chartered surveyor, so can only answer as an engineer. I would have expected a surveyor either to get a builder to carry out opening up, or to get an engineer to come and look at it. It depends on what Thomas Hunt had felt had caused the problem."
I accept Mr Mitchell's submission (see paragraphs 76-7 of Cluttons’ written opening submissions) that it is appropriate for the court to have regard to all three types of approach in determining whether a duty of care arises. As regards the threefold approach, on the issue whether it was foreseeable to Cluttons that, if Cluttons did not inspect the premises with reasonable skill and care, such a breach would cause economic loss to Maison Blanc: all the expert surveyors are of the opinion that, if the state or condition of the premises at the date of Thomas Hunt’s inspection was (or was substantially) as shown in the Arcin photographs, then " Cluttons should have recognised that there was movement of the awning and further risk". At the end of their evidence, the surveyors collectively clarified what they meant by the expression "further risk" in their joint statement, and they collectively stated that, by that expression, they meant that the Cluttons surveyor should have appreciated that there was a need for some urgent attention (DG/162). In those circumstances, based on the evidence set out in paragraphs 72-8 above, I find as a fact that it would have been foreseeable to the ordinary reasonably competent surveyor, had he failed to observe what was there to be observed on 30 March 2007, that a failure to do so could result in economic loss to Maison Blanc. In my judgement it was materially or significantly more foreseeable by Cluttons that Maison Blanc might suffer economic loss as a result of a breach by Cluttons, than either of the matters identified in paragraph 84 (a) of Cluttons’ written opening submissions.
Then, on the issue whether there was sufficient proximity, I find the following matters to be material: Cluttons had a detailed knowledge of the premises, which they had acquired over a number of months while the work to the first floor and the exterior was carried out by R&J; Maison Blanc and Cluttons had been in contact during that process; Maison Blanc had made a specific request to Cluttons to investigate a reported problem, which Cluttons agreed to do. In my judgement those factors establish a sufficient degree of proximity. The fact that Cluttons was retained by the landlords, which led Mr Mitchell to describe Maison Blanc and Cluttons as being "on opposite sides in an adversarial process" in paragraph 84 (b) of Cluttons’ written opening submissions, is to my mind outweighed by the factors identified above.
Then, as regards whether it is fair just and reasonable to impose such a duty, the factors summarised in ‘Clerk and Lindsell’ between paragraphs 8.91 and 8.124 assists the analysis. In particular:
The purpose of Cluttons attendance was specifically to investigate the matters reported in Jeremy Brecknock’s e-mail, which makes specific reference to “what appears to be damage to the protruding front structure which houses the awning. It appears that the unit has slipped forward during the works Cluttons/its contractors were going on the first floor”;
The fact - as I find - that Cluttons knew, or ought to have known, that until and unless Cluttons advised otherwise, Maison Blanc would rely on what Cluttons reported to them following Thomas Hunt’s inspection on 30 March 2007; and
The fact - as I find – that it was reasonable for Maison Blanc to rely on Cluttons report following Thomas Hunt's inspection on 30 March 2007.
As regards the incremental approach: neither Mr Mitchell nor Mr Wilmot-Smith QC cited any authority in support of any submission to the effect that the application of the incremental approach would result in a finding that Cluttons did not owe a duty of care to Maison Blanc. I do not find that application of the incremental approach leads to such a conclusion.
In contrast, the "acceptance of responsibility" approach points very strongly towards their being such a duty of care in the circumstances of the present case. As found above, Maison Blanc made a specific request of Cluttons to attend the premises and inspect damage which they had reported, and Cluttons agreed to do so. In such circumstances I find that Cluttons accepted a responsibility to carry out such an inspection with the reasonable skill and care to be expected of the ordinary reasonably competent surveyor.
I thus conclude, in the particular circumstances of the present case, that Cluttons owed Maison Blanc a duty of care. It was a limited duty: (a) to carry out the inspection on 30 March 2007 with reasonable skill and care, having regard to the damage reported by Jeremy Brecknock in his e-mail of 27 March 2007; (b) to record their findings appropriately, whether by photographs or in written form; and (c) thereafter to advise Maison Blanc “what he (Thomas Hunt) intended to do, as Mr Tuffin put it, and/or provide "a recommendation of at least how the matter should be investigated further and how the problem might be resolved thereafter", as Mr Freeman put it.
Given the contents of the surveyors’ joint statement cited above, and the evidence not only of Mr Tuffin and Mr Freeman as surveyors, but also of Mr Price and Mr Tutt as engineers cited above, I find that Thomas Hunt failed to observe what the ordinary reasonably competent surveyor should have observed on 30 March 2007, and thus failed to carry out his inspection with the reasonable skill and care to be expected of the ordinary reasonably competent surveyor: see paragraph 55 above; nor did he record his findings sufficiently or at all; nor did he advise Maison Blanc appropriately. As he failed to observe what the ordinary reasonably competent surveyor should have observed, it was inevitable that his e-mail of 2 April 2007 failed to give Maison Blanc a sufficient or appropriate recommendation of how the matter should be investigated further and/or how the problem might be resolved thereafter.
Cluttons further submitted that, because Maison Blanc instructed its own contractor to inspect the premises following the telephone conversation between Thomas Hunt and Jeremy Brecknock on 7 June 2007, Maison Blanc no longer relied on Cluttons, and thus even if Cluttons had been in breach of its duty of care before then, such breach did not thereafter cause loss and damage to Maison Blanc: see paragraph 88 of Cluttons written opening submissions, supplemented by Mr Mitchell's oral closing submissions (DG/194).
In my judgement, the fact (as I have found: see paragraph 49 above) that Thomas Hunt advised Maison Blanc to get its own contractor to inspect the premises does not bring about the consequence for which Cluttons contends. Cluttons owed Maison Blanc a duty of care as explained above, and were in breach of that duty. Such breach caused Maison Blanc to suffer loss and damage, namely the cost of any claim made against Maison Blanc by third parties injured as a result of the premises being in a condition which Cluttons failed to observe and thereafter report. The fact that, in the context of Cluttons still responding to Maison Blanc’s request to investigate the problem, Cluttons advised Maison Blanc to get their contractor to carry out an inspection of the premises did not absolve Cluttons from their continuing duty to advise. As found above, I specifically reject Thomas Hunt’s assertion in his evidence that he "said there was nothing we could do, because it was not our responsibility" as being inconsistent with the terms of his contemporaneous attendance note, and not something he recorded in writing, either by e-mail or in a more formal letter.
I therefore conclude that Maison Blanc succeeds in its primary claim against Cluttons.
Maison Blanc’s claim against Cluttons for a contribution under the 1978 Act
Cluttons also dispute that, in the circumstances of this case, they owed the claimants a duty of care. A like analysis in this respect therefore needs to be undertaken as it was with Maison Blanc’s direct claim.
In addition to the evidence cited in paragraphs 72-8 above, it is also necessary to have regard to the geographical location of the premises. The photographs indicate that 125 High Street in Putney is a busy commercial thoroughfare, with members of the public passing frequently along the pavement in front of the premises.
In his cross-examination by Active, Mr Tutt stated (DG/110):
“A lot of shops have awnings, and no specific structural element is involved in order to maintain their integrity. Good construction is usually sufficient without a further design import, in my opinion."
As already noted, in his evidence Mr Tuffin stated (DG/143-4) that the initial intention of the ordinary reasonably competent surveyor, having received Jeremy Brecknock's e-mail of 27 March 2007, would have been to establish whether there was any significant structural issue (i.e. problem).
I accept Mr Mitchell’s submission that it is appropriate in these circumstances to apply the threefold test to ascertain whether Cluttons owed the claimants a duty of care: see paragraph 59 of Cluttons’ written opening submissions.
On the issue whether it was foreseeable to Cluttons that, if Cluttons did not inspect the premises with reasonable skill and care, such a breach would, or could, cause physical harm to a member of the public including the claimants, I find that it would have been foreseeable to the ordinary reasonably competent surveyor that, had he failed to observe what was there to be observed on 30 March 2007, a failure to do so could result in such physical harm. In paragraph 60 of Cluttons’ written opening submissions, Mr Mitchell submitted that "Cluttons attended at the premises to see if, as maintained by Maison Blanc, damage had been caused to the awning, apparently by R&J. It did not attend to conduct a survey to determine what the cause of any such damage was." I have found on the evidence that Cluttons agreed to attend the premises to inspect the damage which Jeremy Brecknock had reported to the awning box, and not just to the awning. I have also found, in the context of Cluttons’ owing a duty of care to Maison Blanc, that such a duty was a limited duty, which included a duty to carry out an inspection with the reasonable skill and care to be expected of the ordinary reasonably competent surveyor, and thus observe what was there to be observed. Accordingly I reject Mr Mitchell’s submission in this regard.
On the issue of proximity, as before I find the following matters to be material: Cluttons had a detailed knowledge of the premises, which they had acquired over a number of months while the work of the first floor and the exterior was carried out by R&J; the occupier had made a specific request to Cluttons to investigate a reported problem, which Cluttons agreed to do. As a result Cluttons knew and/or ought to have known of the close physical proximity of the premises to the highway, in particular the pavement in front of the premises along which members of the public frequently passed. It follows that the ordinary reasonably competent surveyor would have known or appreciated that any failure to inspect and advise in connection with a defect in part of the frontage of the premises could have resulted in personal injury being caused to a passing member of the public. In paragraph 62 of Cluttons’ written opening submissions it was submitted that "There was nothing about the situation that presented itself to Mr Hunt on 30 March 2007 that suggested there was any danger posed to any person by the condition of the awning and its housing. Accordingly, no proximity exists between Cluttons and the class of persons to which the claimants belong." That is a submission which is based on the premise that what is material is a subjective analysis of what Thomas Hunt in fact observed, rather than an analysis based on what the ordinary reasonably competent surveyor should have observed. In my judgement the correct basis is the objective analysis, and I therefore reject Mr Mitchell’s submission is in this regard.
Then, on the issue whether it is fair just and reasonable to impose such a duty, I reject the submission at paragraph 67 of Cluttons’ written opening submissions that, because the claimants have other claims against other parties, it would not be fair just and reasonable also to impose a duty of care on Cluttons towards the claimants.
I therefore conclude that, in the particular circumstances of this case, Cluttons owed the claimants a like limited duty of care; they were in breach of such duty; and such breach has caused the claimants loss and damage. Such a conclusion is, in my judgement, consistent with the decision of the Court of Appeal in Perrett v Collins [1999] PNLR 77: see in particular the judgement of Hobhouse LJ at page 87 A-D.
It follows that Maison Blanc succeeds in its claim for a contribution against Cluttons.
Active’s claim against Cluttons for a contribution under the 1978 Act
On behalf of Cluttons, in the course of his closing oral submissions (DG/195 & transcript 95-98) Mr Mitchell made a submission that, in the event Maison Blanc recovered all its loss (i.e. the sum it had to pay to the claimants in respect of its liability to them) from Active, as damages for breach of contract on the part of Active, then Active could not in turn recover contribution from Cluttons under the 1978 Act, because Active and Cluttons would not be liable in respect of the same damage. The reason for that, Mr Mitchell submitted, was that the damage which Active had suffered was damages for breach of its contract with Maison Blanc, whereas any damage which Cluttons had suffered was in respect of its liability to the claimants.
Section 1 of the 1978 Act, headed "Entitlement to contribution" provides as follows;
“(1) Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise).
(2) A person shall be entitled to recover contribution by virtue of subsection (1) above notwithstanding that he has ceased to be liable in respect of the damage in question since the time when the damage occurred, provided that he was so liable immediately before he made or was ordered or agreed to make the payment in respect of which the contribution is sought."
By application to the facts of the present case, section 1(1) of the 1978 Act operates in the following manner. The term "any person liable in respect of any damage suffered by another person" includes Active, which is a person liable to the claimants in respect of the damage which the claimants suffered as a result of the accident, as alleged in the particulars of claim. Such person "may recover contribution from any other person liable in respect of the same damage". Such "other person" includes Cluttons, which is also a person liable to the claimants in respect of the damage which the claimants suffered as a result of the accident.
Mr Mitchell then went on either to develop that submission, or to make a further submission, by submitting that - by reference to subsection (2) - Active could only claim contribution in respect of the payment it had made, and any such payment was, or could only be, a judgement sum ordered against it in respect of Maison Blanc’s claim against Active for damages for breach of contract, and such a payment could not be "the same damage" for which Cluttons was liable, viz its liability to the claimants.
In my judgement, subsection (2) is dealing with the specific circumstances which obtain when a person's liability to another has ceased. It is in effect a saving provision. A typical circumstance occurs where one defendant's liability to a claimant has ceased, for whatever specific reason. However, if that defendant was liable to the claimant before his liability ceased (whether through judgement, settlement or any other reason) then he can still make a claim for contribution against another person, often another defendant. Those circumstances do not arise in the present case. Neither Maison Blanc’s, nor Active’s, liability to the claimants has ceased. In those circumstances, the provisions of subsection (2) simply do not apply to the circumstances of the present case.
In the course of his closing oral submissions, Mr Mitchell also made a submission that, in summary or shorthand , section 1 (1) of the 1978 Act defined "who" was entitled to recover contribution, while section 1 (2) defined "what" the nature or extent of such entitlement was; then making the further submission that a person was only entitled to recover contribution under the 1978 Act in respect of a payment which he had either been ordered to make or had agreed to make. While section 1 (1) does indeed define who is entitled to recover contribution, for the reasons I have already explained section 1 (2) does not define the nature or extent of such entitlement. That matter is dealt with in section 2 of the 1978 Act, which provides:
“… In any proceedings for contribution under section 1 above the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage in question."
Section 2 thus provides that the amount recoverable "from any person" is "such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage in question”, irrespective of whether such person has made any prior payment. I thus reject Mr Mitchell’s submissions in this particular respect.
It is also to be noted that the reference to "payment" comes within the proviso provision of subsection (2). In my judgement the reference to "payment" within the proviso provision of subsection (2) should not be read to diminish or derogate from the general entitlement to contribution which is set out in subsection (1).
Accordingly, Active is and remains able to claim contribution from Cluttons, each of those parties being liable in respect of the same damage, namely their several and respective liability to the claimants. The fact that Active was also in breach of its contract with Maison Blanc does not affect Active’s entitlement to claim such contribution from Cluttons.
As I have found that both Active and Cluttons would have been liable to the claimants, it is necessary to go on to apportion liability between Active and Cluttons.
The principles governing such an apportionment are summarised in Brian Warwicker Partnership v HOK International Ltd [2005] EWCA Civ 962: see paragraph 69 of Cluttons’ written opening submissions. The court has a general and broad discretion when carrying out such an apportionment; the court should 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 other relevant parties.
As regards causative potency: Active’s failure was in being wholly responsible for causing the relevant danger when carrying out the fit out works in 2005. Cluttons’ fault was in failing thereafter to observe what was there to be observed when Thomas Hunt carried out his inspection on 30 March 2007. I regard the causative potency of Active’s fault as being at least twice that of Cluttons; as a starting point I would thus apportion liability between Active and Cluttons, having regard to causative potency, at 67:33.
As regards blameworthiness: Active was in breach of a category one contractual obligation. This was a serious breach; it was a breach of a contractual obligation to comply with the relevant part of the Building Regulations, which Regulations necessarily engage considerations of public safety or interest. In contrast, Cluttons were in breach of a limited duty of care, less onerous than would have been the case had Cluttons been acting for their client. Having regard to the nature of Active’s blameworthiness, I adjust the apportionment to 78:22; and having regard to the nature of Cluttons’ blameworthiness I further adjust the apportionment to 89:11.
Accordingly, Active is entitled to recover from Cluttons 11% of any sum it is liable to pay to Maison Blanc.
General
I will hear further submissions from Counsel as regards issues of costs and any other consequential matters on a convenient date to be fixed.
DG