The Case of the Spreading Flames and the Spreading Blame

It has been fashionable of late to emphasise teamwork as a cure to many of the problems in our industry. Just look at the title of Sir Michael Latham’s 1994 report on the industry – Constructing the Team. All of this deserves praise if it leads to quality projects which are completed on time and within budget. However a number of recent cases show how when things go wrong the team approach counts for nothing. Clients seek to blame as many people as possible and those who are blamed seek to blame others. The British Library case about which I wrote in the January 1999 edition of Construction Press is an example of this. Another is the 1998 decision in J Sainsbury Plc v Broadway Malyan and Ernest Green Partnership Limited.

Sainsburys engaged Broadway Malyan as architect to complete the design of a supermarket in Chichester. Separately, they engaged Ernest Green Partnership as consulting engineer. The supermarket in question was built in 1985 and was gutted by fire in 1993. Sainsburys alleged that, due to negligence by the architect in the design of a compartment wall between the service area and the sales area of the store, the fire spread more quickly than it other-wise would have and therefore caused much greater damage.

The wall in question was built in accordance (we assume) with a drawing which included reference to the method of fire protection and was prepared by the architect. Earlier drawings of the wall had been sent to the engineer with a request for "comments". At that stage the live issue being considered was the wall’s structural stability. Comments were received and changes made. Later, the architect sent a further drawing of the wall showing revised detailing and describing the proposed method of fire protection. A covering letter also described the fire protection but there was no express request for comment on this aspect. No response was ever given by the engineer. It seems likely that he considered the structural stability issue, concluded that it was satisfactory and therefore felt that it was not necessary to say anything.

The architect was sued by Sainsburys and settled that action for several million pounds. It then pursued the engineer for a contribution on the basis that the engineer had been negligent in not commenting on the fire protection issue (an example of the practice described by Emma Colquhoun elsewhere in this edition of Construction Press).

The architect failed. The issue of fire protection may well fall within the scope of an engineer’s responsibilities in certain circumstances but in this case it did not. The architect’s downfall seems to have been in being the lead consultant. He produced the drawing and specified the fire protection. He should have specifically asked the engineer if he required comments on or approval of the fire protection and then pursued the engineer for an answer.

One might say that this is the correct answer and the architect should bear full responsibility – it is part of what he is paid for. But the rough end of the deal is this – the engineer’s duties were determined by the terms of his appointment by Sainsburys. These could easily have been more wide ranging and included a specific requirement to advise on fire protection of walls. The architect would then have been entitled to a contribution from the engineer. But how often do architects get the opportunity to comment on the terms of engagement or services of the rest of the team? Rarely or never, I would suggest. The result is that their entitlement to a contribution is in the hands of the client.

And it gets worse. The 1996 case of Chesham Properties Ltd v Bucknall Austin Project Management Ltd suggests that had things been the other way around (the engineer but not the architect being responsible for fire protection) the architect could still have been sued. His role as lead consultant would (probably, the court said) include a duty to coordinate and monitor the work of the rest of the team and this would include an obligation to warn the client if anybody was failing to perform. True, the architect would only be liable if it was within the competence of an ordinary architect to identify the failing. However, the question of fire protection seems to fall to both architects and engineers I would suggest that there would be no escape for the architect in this case.

The practical solution to this may lie in the sorts of things the Latham Report talks about – clear definition of responsibilities and lines of communication. In the absence of these, it remains much safer to be a team member than a team leader.

This article was first published in Macfarlanes' Construction Press Newsletter in July 1999.