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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hyde & Associates Ltd v Williams & Co Ltd [2000] EWCA Civ 211 (6 July 2000)
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Cite as: [2000] EWCA Civ 211
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Case No: QBENF 98/1650 CMS1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 6th July 2000
LORD JUSTICE NOURSE
LORD JUSTICE WARD
and
LORD JUSTICE SEDLEY
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Michael Hyde & Associates Ltd. |
Appellant | |
- and - |
||
J.D. Williams & Co. Ltd. |
Respondent |
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Mr Stephen Grime Q.C. and Mr Nicholas Fewtrell (instructed by Elliotts for the Appellant)
Mr Ian Pennicott (instructed by Addleshaw Booth & Co. for the Respondent)
Judgment
As Approved by the Court
Crown Copyright ©
Lord Justice Ward: Phenolic yellowing is a phenomenon which may be known to researchers into the subject but it is known to very few others. It affects textiles; but in the opinion of the claimant's own expert, textile suppliers and merchants only become aware of the problem after they have experienced it. It was certainly not known at the material time to the claimant in this action, J.D. Williams & Co., ("JDW"), but it is now. JDW is a large catalogue mail order company which was holding vast quantities of clothing in two converted former cotton mills. A computer database search of the architectural journals, the publications in the building and construction industry and the heating and ventilation literature made no reference to phenolic yellowing. Not surprisingly, therefore, the defendant, Michael Hyde & Associates Ltd., a company of chartered architects, knew nothing about phenolic yellowing.
Phenolic yellowing occurs in this way. Yellowing precursors are commonly present as antioxidants in plastic packaging made of polythene, but not cellophane, in foam and in some lubricants, or as naturally occurring phenols (derived from lignin in wood) which can be present in cardboard and paper. These yellowing precursors are often quite volatile and so they can migrate to textiles placed in close proximity to these packaging materials. This will occur more readily when the yellowing precursors come into contact with oxides of nitrogen, because it is in this way that the yellow products are formed and transferred to and absorbed by the textiles.
Oxides of nitrogen from various sources are present in the atmosphere. They are a product of the combustion of the natural gas which takes place in a direct fired system of heating which operates by air being drawn into the heater from the atmosphere, mixed with gas, burnt and expelled within the premises.
This was the heating system installed in the claimant's premises during the conversion and refurbishment of the old cotton mills. The defendant was appointed as architect for the project. The distribution centre became operational in about December 1990. By May 1991 the extent of the yellowing of the claimant's clothing had become significant. The causal link between the direct fired gas heating system and the phenolic yellowing was eventually obvious.
JDW alleged in the proceedings which followed in 1995 that the architects ought to have been aware of the risk of discoloration and ought to have warned the claimant of it. The defendant contended that it could not reasonably be expected to be aware of phenolic yellowing - if anyone ought to have known about its dangers it was those within the textile industry and the claimants could not blame others for its own short comings. The hearing in July 1998 lasted for five days before His Honour Judge S P Grenfell conducting the Official Referee Business in the Queen's Bench Division of the High Court at Salford. In a judgment handed down on 16th December 1998 he found for the claimant and on 22nd December 1998 judgment was entered against the defendant in the sum of £365,325.60. This is the architect's appeal against that order.
A Summary of other Material Facts.
The claimant company is in a very large way of business in the garment sector. In April 1989 the company purchased Briar Mill, a derelict five storey cotton mill in Shaw, Oldham. The original intention was to convert the mill for use as a bulk storage warehouse. It would need a modern heating system and in May 1989 British Gas through its Sales Officer, Mr Higginson, quoted for the more usual indirect gas-fired system. Later he suggested that a direct fired system might be preferable. It required less units than an indirect fired system so it had economic advantages. Moreover the fans could be used to provide ventilation in the summer to improve the comfort of those who work there. It was clearly attractive to Trevor Fowler, JDW's newly appointed Engineering and Building Services Manager, a qualified engineer with experience in the textile business. Mr Fowler asked Mr Higginson to make further enquiries.
British Gas turned to its supplier, PC Rapid, the English distributor of the American made system. In his witness statement Mr Higginson said:-
"I understand we had experienced a problem with the discoloration of products containing foam at a factory at which a direct gas-fired heating system had been installed. There was a standing order within British Gas North Western requiring consideration of the risk of discoloration in all quotations for direct gas-fired heating systems in situations where there might be foam or other man made materials or fabrics. PC Rapid were unhappy about this and tried to persuade us to drop the disclaimer which they saw as prejudicial to their product and business."
In their response PC Rapid drew attention "to existing direct fired installations in sensitive areas which might be prone to discoloration" and, having listed a number of installations on premises where clothing was kept, they stated:-
"The above examples are only a few selected from a comprehensive list to demonstrate the suitability of the Rapid approach to direct firing in areas where discoloration might occur on the customer's product, we confirm that none of our customers have experienced this problem."
Nevertheless a disclaimer was included in the quotation dated 15th June 1989 given by British Gas to J.D. Williams. It was to this effect:-
"British Gas plc will not be liable for any discoloration effect on materials resulting from direct gas fired heating."
The disclaimer did not escape the claimant's attention. The judge found that Mr Beveridge, a Director of the claimant company, highlighted that sentence on a copy of the quotation which remained on the company's files. Mr Fowler was not called by the company but the architects put his witness statement in evidence. That revealed that he made a note on the quotation:-
"Man-made products from foam ... with primitive type."
That was his record of the discussion he had with Mr Higginson who told him that British Gas had experienced a problem with an older system and products containing foam. According to Mr Fowler, Mr Higginson assured him that discoloration was not a problem. The judge found:-
"Higginson achieved his aim which was to reassure Fowler, which Fowler in turn took to mean that there was no problem ... I am satisfied that neither (Beveridge) nor Fowler had any prior knowledge of discoloration caused by direct fired gas heaters, let alone phenolic yellowing. It seems that Beveridge's prime concern was to ensure that an efficient heating system avoided some of the staff problems which had occurred in the past ... Against this background it would seem that JDW, as I find, would have been ready to install direct fired heating in Briar Mill".
Those plans changed because in the summer of 1989 JDW managed to acquire Lilac Mill which was situated on the other side of the railway line and the project turned into the very much larger development of converting and refurbishing both mills. In those circumstances MHA was engaged to provide "all architectural, clerk of works, surveys, quantity surveying and structural engineering services" necessary for the project. The judge characterised that engagement as indicating "a multi-disciplinary administrative and advisory service". The extent, if any, of their duty to advise in respect of the choice of the heating system was of course in issue.
Mr Warrington, a civil engineer, was responsible for the project on the defendant's behalf. In addition to the architects, JDW appointed a project manager who had its own engineering and building expertise. When the question of heating was raised, Mr Fowler suggested to Mr Warrington that he communicate with Mr Higginson. Mr Fowler provided the June quotation and Mr Warrington noted the disclaimer and realised it was a matter to explore with Mr Higginson. There was a meeting on 24th November 1989. The judge found:-
"... Warrington asked (Higginson) about the disclaimer in the British Gas quotation and was told that it was a standard clause but that direct fired units had been used in similar installations elsewhere without there being a discoloration problem. Later on the same day Warrington met Fowler, pursuing his manuscript note "Check JDW discoloration" repeated what he had been told by Higginson and obtained Fowler's confirmation that this was in line with what he had previously learnt. Both Warrington and Fowler were of the view that the use of direct heating was not a cause for concern and I am satisfied that they jointly decided to proceed on the basis of the direct fired system."
In paragraph 11 of his judgment the judge made these important findings:-
"Therefore, although there are some background facts in issue, the basic facts are that both Fowler on behalf of JDW and Warrington on behalf of MHA had a similar state of knowledge as to the risk of discoloration attached to direct fired heating in November 1989 at the crucial time (the meeting of 24th November) when in effect Warrington presented to Fowler all he knew on the subject of the proposed heating system. That state of knowledge was that neither was aware of the phenomenon known as phenolic yellowing, each was aware that there had been some previous experience of discoloration of foam with primitive heaters and that British Gas were not prepared to remove their disclaimer in respect of discoloration; both regarded Higginson of British Gas as someone who could speak authoritatively on the subject of gas fired heating systems; neither questioned the extent of his technical knowledge; both had been reassured by Higginson that there was at the most no serious problem in this regard - it was clear to me that Higginson had been anxious to play down the risk of discoloration; that he plainly succeeded in doing so. The effect of Higginson's two conversations with Fowler and Warrington was to convince each of them that the risk was not significant."
In the result the direct fired heating system was ordered and installed and the damage to the claimant's goods followed.
The Issues before the Judge.
He identified them as follows:-
"3. Although causation and quantification of loss were live issues before me, the case has distilled to a question whether MHA were in breach of duty in failing to cause further investigation of the known risk of discoloration and whether such investigation could in fact have uncovered an unacceptable risk of discoloration of textiles. If JDW established that in effect MHA's negligence resulted in the installation of the PC Rapid direct fired system, the evidence is now all one way that the system probably caused an excess of nitrous oxide to be circulated within the distribution centre and in turn caused the phenolic yellowing of stored garments ... Quantification of JDW's claim has been rendered easier by a considerable measure of agreement with reference to the Schedule of Loss which has been prepared ...
12. The question is whether Warrington had a duty not to accept any reassurance from Higginson ...
25. Despite all this, was Warrington, and therefore MHA, absolved from a contractual duty to question Higginson's reassurance? ...
31. If Warrington had not been content with the Higginson reassurance, what action could he have taken?"
So there were two live issues - negligence and causation.
The First Issue: Negligence.
The Experts' Opinions.
The claimant called a Mr Barnard, the defendant a Mr Byrom. The judge summarised their evidence as follows:
"13 Mr Barnard's proposition, that the primary duty of an architect instructed with regard to a project such as this is to advise his client on all other necessary disciplines relevant to that project, is uncontroversial. Speaking from the standpoint of a reasonably competent architect Mr Barnard would have gone in the first instance back to British Gas to find out the reasons why the disclaimer had been put forward and in effect to consider what further input was needed whether from the firm's own expertise or from external sources: for example, had Warrington gone back to Higginson, he (Higginson), as he indicated in evidence, would have referred the matter to the Scientific Services Department of British Gas; then at least there would have been a good chance that the trail of enquiry, which would have been thus set in motion, would have ended at an organisation such as British Textile Technology ("BTTG") or at least provided the kind of technical advice on which JDW would have been able to make an informed choice of heating system. Mr Barnard's opinion was that it was not reasonable for Warrington to rely on what Higginson said, when British Gas continued to rely on the validity of the disclaimer: that should have told him in effect that British Gas still entertained a doubt as to whether discoloration would occur with the operation of a direct fired gas heating system; that, he said, should have shone out like a "red beacon" ...
I shall have to consider whether, in fact, starting from the premise that British Gas' Scientific Services Department alone or in combination with other enquiries which Warrington might have made would have thrown up a serious risk of discoloration of garments. On the assumption for the moment that it would have done so, then Mr Barnard would have expected Warrington to have gone back to the client, JDW, with two options:
(1) to employ a mechanical and electrical engineering consultant to quantify the risks further to enable the client to weigh the potential benefits of direct fired heating against the risks of discoloration;
(2) if the doubt as to whether discoloration might be caused was so significant that the client should not go forward with the direct fired heating option.
14 In summary, Mr Barnard's criticism of MHA in the form of Warrington was that in effect he had failed to present JDW with those options.
15 Mr Byrom disagreed with Mr Barnard. His view was that the practising architect does not have detailed knowledge of his client's business; he relies very much on the client's in-house technical staff to give advice and assistance in these areas, which are outside the scope and training of an architect. Higginson had given reasonable advice and Fowler was aware of all this - provided that the client was himself aware of the potential problem area, it was up to the client to attend to it.
16 Faced with the British Gas disclaimer Mr Byrom as an architect would have taken up the matter with Higginson (as did Warrington); Higginson's reassurance would have satisfied him, because it was "no skin off his nose whether direct or indirect heating was used". Warrington ought to have drawn the disclaimer to the attention of his client which he did; once he had raised it with the client, he had fulfilled his duty. Mr Byrom disagreed directly with Mr Barnard on this. He went further: in his view, this was a textile matter not a heating matter; this heating system complied with the British Standard so that Warrington had done his duty - the discoloration was something which went beyond that. To have done more, in his opinion, was beyond what it was reasonable for an architect to do."
One sees immediately how narrow the area of dispute was: was it sufficient to draw the client's attention to the risk or was it necessary to enquire further to establish how serious the risk was?
The Judge's Approach to the expert evidence.
He directed himself in accordance with Nye Saunders & Partners (a firm) v Alan E Bristow (1987) 37 B.L.R. 97, 103, in which Stephen Brown L.J. said:
""The duty and standard of care to be expected from (the architect) was accepted as being that which applied to any profession or calling which required special skill, knowledge or experience. The test is that formulated in a medical negligence case - Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582. Where there is a conflict as to whether he has discharged that duty the courts approach the matter upon the basis of considering whether there was evidence that at the time a responsible body of architects would have taken the view that the way in which the subject of enquiry had carried out his duties was an appropriate way of carrying out the duty, and would not hold him guilty of negligence merely because there was a body of competent professional opinion which held that he was at fault. The onus of proving negligence, of course, rests firmly upon the person who alleges it ..."
He recorded Mr Grime Q.C., counsel for MHA, submitting to him, as he has repeated to us, that the direct clash of opinion between the experts should be regarded as representing two respectable bodies of opinion, or separate but equally respectable schools of thought, and that, therefore, following the principles laid down in Bolitho v City of Hackney Health Authority [1998] AC 232 faced with two responsible bodies of opinion as to whether or not Warrington should have accepted Higginson's reassurance and as to whether he should have done more to investigate the risk or discoloration further he (the judge) should not simply decide which opinion to accept. His task was said to be:-
"Rather, unless I considered there was no logical basis to Mr Byrom's opinion, I should hold that Warrington's failure to pursue the issue of discoloration was defensible; and that applying the burden of proof I should acquit Warrington and, therefore, MHA of negligence."
The judge referred, and was right to refer, to passages in the speech of Lord Browne-Wilkinson in Bolitho at pp. 241 and 243:-
"... the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice. In the Bolam case itself, McNair J. [1957] 1 W.L.R. 583, 587 stated that the defendant had to have acted in accordance with the practice accepted as proper by a "responsible body of medical men". Later, at p. 588, he referred to "a standard of practice recognised as proper by a competent reasonable body of opinion". Again, in the passage which I have cited from Maynard's case (Maynard v West Midlands Regional Health Authority) [1984] 1 W.L.R. 634, 639 Lord Scarman refers to a "respectable" body of professional opinion. The use of all these adjectives - responsible, reasonable and respectable - all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis ...
These decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of respectable opinion sanctioning the defendant's conduct, the defendant can properly be held liable for negligence ... In my judgment that is because, in some cases, it cannot be demonstrated to the judge's satisfaction that the body of opinion relied upon is reasonable or responsible ... But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.
I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable."
The Judge's Conclusions on the Proper Approach to the Experts' Evidence.
He held:-
"20 I read these authorities as preventing a judge from deciding between two
logically based expert opinions, when he (the judge) obviously has no expertise
in the field of those experts and, therefore, no proper basis on which to judge
which opinion is to be regarded as preferable ... (Lord Browne-Wilkinson)
plainly did not preclude a logically based attack, presented in such a way that
the judge can understand it, from effectively challenging an otherwise
respectable opinion.
21 Where the issue, as to whether a professional man has been negligent or not,
does not of itself require any particular expertise in, for example, the field
of architectural practice, I do not read the authorities as prohibiting the
judge from deciding that issue, notwithstanding the fact that two architects
have given evidence that each would have approached the matter in question in a
different way. In my judgment, that is the situation which faces me.
Undoubtedly, if Warrington had considered that there was a risk of
discoloration which merited further investigation, he would have taken
appropriate steps to bring that to the attention of JDW via Fowler and to have
investigated further. It seems to me that I have to judge Warrington's state
of mind, in particular, on 24th November 1989 on the rather simpler basis of
what, if any further, thought he should have given to the matter of
discoloration, rather than by applying views of architectural practice to that
situation."
The Judge's Conclusions on the matter of Negligence.
He held:-
"28 ... it seems to me that the question for me to decide is whether, as a
matter of fact and regardless of what might or might not be accepted practice
among some architects, Warrington was right to do nothing further about
investigating the risk of discoloration. His duty to investigate the risk,
once he was made aware of it, was plainly accepted by him in that he thought it
necessary to discuss it with Higginson and then to refer it back to JDW through
Fowler. In these simple circumstances, was Warrington negligent in discounting
the risk? I do not have any difficulty in considering the factors which help
me to decide this question. These factors, in my judgment, are not peculiar to
architectural or engineering practice. It was a matter of weighing risk
against benefits: the risk was a known risk of some form of discoloration on
materials; the potential effect of any form of discoloration on
garments which were going to be kept in the distribution centre was obviously a
matter of great concern, even without the gift of hindsight; this had to be
weighed against the benefits of lower cost and a more flexible heating system.
Plainly, Warrington did not have to be aware of the precise risk of phenolic
yellowing. I do not have any difficulty in being able to judge Warrington's
acceptance of the Higginson reassurance. In the event, I do not find it
necessary to hold that the views of Mr Byrom have no logical basis, because my
decision rests on my own view of Warrington's failure to investigate the risk
of discoloration further and not those of the experts. However, if pressed, I
should have had to say that I preferred Mr Barnard's evidence to that of Mr
Byrom.
29 In my judgment, Warrington did not rely on such research as had been
carried out in the previous summer, because otherwise he would not have been
concerned with the potential risk any further. Rather, he may well have been
influenced by Fowler's own state of knowledge and view of that risk which had
been communicated to him by Higginson. Thus, as I find, Warrington did not
rely on the exchanges between Higginson and Fowler, but was equally influenced
by that and his own similar exchange with Higginson and, as a result, took the
matter no further. In my judgment, at this stage he did rely on
Higginson's reassurance. I find that Warrington, as an independent adviser,
should not have accepted Higginson's authority to speak as an independent
technical expert on the risk of discoloration; that Warrington did not
question that expertise; that, had he queried either his expertise or the
reason for maintaining the disclaimer, Higginson would have referred the matter
to its Scientific Services Department; that had this stage been reached,
almost certainly Warrington would have advised JDW that the risk needed to be
investigated further. In essence, Warrington was wrong to be reassured about
the risk so long as British Gas insisted on maintaining its disclaimer. I
agree that was a "red beacon" which he failed to heed.
30. I have a lot of sympathy for Warrington who was managing a complex
commission with many and varied facets of which the heating was but one
relatively small part: in a sense he fell into the same trap as Fowler in
placing too much reliance on the commercial advice of Higginson - I can well
understand how that came about. The vital distinction, however, between Fowler
and Warrington is that the latter's firm by the 24 November 1989 was under a
duty to advise JDW as what would be a suitable heating system. Warrington, in
the ultimate analysis, was negligent in discounting the risk of discoloration
and, therefore, not setting in motion a trail of investigation."
The Judge's Supplemental Judgment.
A year after handing down his judgment, the judge was referred to Flannery v
Halifax Estate Agencies Ltd. [2000] 1 WLR 377 and was invited to provide
reasons in amplification of why he did not find it necessary to hold that the
views of Mr Byrom had no logical basis. He agreed to supplement his judgment
in order to avoid the unnecessary expense of a retrial in the event that the
appeal turned on the absence of reasons for preferring one expert's evidence to
another's. I can understand that reasoning and have a good deal of sympathy
with that pragmatic approach. I also accept without question that the judge
recognised "that it cannot be my task to engage in a reconstruction of my
judgment", that he did not do so, and that he had a clear memory of the case.
Nevertheless, I am of the view that the judge should not have been put in that
embarrassing position and that once a judgment has been approved, then it must
stand or fall as it is, warts and all. Going back to the judge for
clarification is a step I would strongly discourage.
For what it is worth, the judge in the supplementary reasons added only that if
it was not clear, he considered Mr Barnard's reference to the "red beacon" "to
represent sound common sense" and that Mr Byrom's view that it was up to Mr
Fowler to make further enquiries of British Gas was "indeed fatally flawed".
For my part I would have inferred from the original judgment that those were
the judge's views.
The Appeal on the Negligence Issue.
Mr Grime made in essence two principal submissions:-
(1) His first was that the judge erred in law in that to have ignored Mr
Byrom's opinion was to have failed properly to apply the Bolam test.
(2) Even if his approach was defensible, his conclusion on the facts was
wrong.
Dealing firstly with the Bolam argument, Mr Grime submits that in
deciding that no further investigation of the risk of discoloration was
necessary, Mr Warrington was in the circumstances of the case exercising
professional judgment and that in the light of Mr Byrom's endorsement of his
actions, it cannot be said that any error of judgment was negligent. If the
Bolam test does apply, then there is considerable force in his argument.
As Lord Scarman said in Maynard at p.639:-
"I have to say that the judge's "preference" for one body of distinguished
professional opinion to another also professionally distinguished is not
sufficient to establish negligence in a practitioner whose action have received
the seal of approval of those whose opinions, truthfully expressed, honestly
held, were not preferred. If this was the real reason for the judge's finding,
he erred in law even though elsewhere in his judgment he stated the law
correctly. For in the realm of diagnosis and treatment negligence is not
established by preferring one respectable body of opinion to another. The
failure to exercise the ordinary skill of a doctor( in the appropriate
speciality, if he be a specialist) is necessary."
The crucial question to my mind is whether Bolam applies at all.
In Bolam itself McNair J. at [1957] 1 W.L.R. 582, 586-7 was directing
the jury as to "what in law we mean by `negligence' ". He drew the distinction
between, on the one hand, "the ordinary case which does not involve any special
skill" and, on the other hand, the "situation which involves the use of some
special skill or competence". In the former case negligence is judged by "the
conduct of the man on the top of a Clapham omnibus". In the latter case, "the
test is the standard of the ordinary skilled man exercising and professing to
have that special skill". Thus he went on, famously, to direct the jury as
follows:-
"I myself would prefer to put it this way, that he is not guilty of negligence
if he has acted in accordance with a practice accepted as proper by a
responsible body of medical men skilled in that particular art ... Putting it
the other way round, a man is not negligent, if he is acting in accordance with
such a practice, merely because there is a body of opinion who would take the
contrary view."
In setting this as a guide to finding negligence, the test is really one which
will assist in deciding whether there has been a breach of duty i.e. a failure
to meet the requisite standard of care. The standard itself it set by the
court, not by the profession concerned. As a statement of the standard of
professional care, I can do no better than repeat Bingham L.J.'s judgment -
even though he dissented on the facts - in Eckersley v Binnie &
Partners (1988) 18 Con.L.R. 1, 80:-
"From these general statements it follows that a professional man should
command the corpus of knowledge which forms part of the professional equipment
of the ordinary member of his profession. He should not lag behind other
ordinarily assiduous and intelligent members of his profession in knowledge of
new advances, discoveries and developments in his field. He should have such
awareness as an ordinarily competent practitioner would have of the
deficiencies in his knowledge and the limitations on his skills. He should be
alert to the hazards and risks inherent in any profession or task he undertakes
to the extent that other ordinarily competent members of the profession would
be alert. He must bring to any professional task he undertakes no less
expertise, skill and care than other ordinarily competent members of his
profession would bring, but need bring no more. The standard is that of the
reasonably average. The law does not require of a professional man that he be
a paragon, combining the qualities of polymath and prophet."
Bolam has been universally adopted as a test of professional negligence.
Thus Lord Diplock said in Saif Ali v Sydney Mitchell & Co. [1980] AC 198, 220:-
"No matter what profession it may be, the common law does not impose on those
who practice it any liability for damage resulting from what in the result turn
out to have been errors of judgment, unless the error was such as no reasonably
well-informed and competent member of that profession could have made."
That test has been held by this court to apply to architects: see Nye
Saunders & Partners v Alan E. Bristow (1987) 37 B.L.R. 92. The
question is, however, in what circumstances should one apply the test? There
are qualifications to it as follows.
1. One such qualification is provided by Bolitho as quoted above,
namely:-
"But if, in a rare case, it can be demonstrated that the professional opinion
is not capable of withstanding logical analysis, the judge is entitled to hold
that the body of opinion is not reasonable or responsible."
2. Another is referred to in Nye Saunders where Stephen Brown L.J.
held:-
"(The judge) was entitled to take the view that the evidence of (the
architects' experts) did not constitute evidence of a responsible body of
architects accepting as a proper practice that no warning of inflation need be
given when providing an estimate of the cost of proposed works. It seems to me
that the learned judge had ample evidence before him which entitled him to find
that there was a failure on the part of Mr Nye to draw the attention of the
client to the fact that inflation was a factor which should be taken into
account when considering the ultimate cost and that that failure constituted a
breach of the Hedley Byrne type duty to the defendant."
3. The third qualification is expressed by Lloyd L.J. in Gold v Haringey
Health Authority [1988] 1 Q.B. 481, 490:-
"If the giving of contraceptive advice required no special skill, then I could
see an argument that the Bolam test should not apply."
In the case before us the judge expressly declined to discount Mr Byrom's
opinion as logically flawed although he went some way in his supplementary
judgment to showing how he could have done so. He did not find, as in Nye
Saunders, that the evidence he received amounted to no more than an
expression of personal opinion as to what the witness would or would not have
done, thereby falling short of being evidence of a responsible body of
architects, or a recognised practice within the profession. He may well
have been able to discount the evidence on that basis for I find little to
suggest that there were two recognised but contrary views of an accepted
practice governing the decision in question. As I read the evidence the
experts were doing no more than putting themselves forward as reasonably
competent architects and then saying what they would have done in the
circumstances in which Mr Warrington found himself. In my judgment this case
could well have been decided and disposed of by adoption of Oliver J.'s views
in Midland Bank Trust Co. Ltd. v Hett Stubbs & Kemp (a firm) [1979]
Ch. 384, 402:-
"Clearly, if there is some practice in a profession, some accepted standard of
conduct which is laid down by a professional institute or sanctioned by common
usage, evidence of that can and ought to be received. But evidence which
really amounts to no more than an expression of opinion by a particular
practitioner of what he thinks that he would have done had he been placed,
hypothetically and without the benefit of hindsight, in the position of the
defendants, is of little assistance to the court ..."
Had the judge followed that course it would have been very difficult to
criticise him for it.
As I understand his judgment, the judge followed the third route. He found in
paragraph 21 that the exercise of judgment involved in deciding whether further
investigation of the risk of discoloration was required or not did not of
itself require any special architectural skills. He was entitled to come to
that conclusion. Contrary to Mr Grime's submission, the judge did not have to
get "under the skin of a different profession" to assess what warning lights
shone from the British Gas disclaimer. He was entitled to judge that for
himself and he made no error of law in doing so. I reject this first ground of
appeal accordingly.
Turning to the facts, I again see considerable force in Mr Grime's submissions.
He listed ten features of the case:-
1. These architects and architects in general had no knowledge of the
phenomenon of phenolic yellowing.
2. They were dealing with a client who handled a vast volume of goods which
could be affected by the phenomenon but the client was also ignorant of it.
3. Mr Warrington was dealing with Mr Fowler who was himself an engineer
experienced in that skill and experienced in the textile industry, having
previously worked in a similar capacity for Littlewoods Mail Order Group.
4. The claimant had in the previous summer made its own investigations and done
whatever research it thought was necessary into the form of heating.
5. As a result it chose a direct fired system and there was nothing in the
extension of the refurbishment to cover the second mill which changed the
risks. If anything the benefits were greater.
6. British Gas was a company with huge resources behind it, a high reputation
and no axe to grind, offering both direct and indirect systems.
7. Mr Higginson himself did not believe that there was a serious risk and said
so.
8. The disclaimer was not significant in the light of the fact that it was a
standard provision and that, at least at a later time, the system was acquired
without a disclaimer.
9. The manufacturer's literature stressed the cleanliness and safety of the
equipment.
10. The appliance complied with British Standards.
Mr Grime makes the powerful point that what Mr Higginson conveyed both to Mr
Fowler and Mr Warrington was not that there was a risk but, on the
contrary, that there was not a serious risk. His knowledge of
discoloration was limited to use of foam and the use of a much more primitive
system. Mr Grime points out that the disclaimer was not ignored: on the
contrary it was seen as a red beacon and for that reason Mr Higginson
was pressed to explain why it was included. He submits that the architect,
having properly sought an explanation from British Gas, a highly reputable
body, sufficiently discharged his duty by raising the facts with the client,
jointly assessing the risks as negligible and the benefits as great, and
jointly taking the decision to proceed.
These are very powerful submissions. I would not have been surprised if the
judge had concluded that the architect was not negligent. I may well have done
so had I been the trial judge. It seems to me , however, that ultimately the
finding was one of fact and in my judgment the judge was entitled to come to
the conclusion he did. For my part I would not be prepared to find that his
finding of the facts was so plainly wrong that this court is entitled to
interfere. There was evidence before him, which he accepted, that the
circumstances did call for further investigation and at least for advice that
there was a risk which had not been assessed. Not without hesitation, I would
dismiss this ground of appeal also.
The Second Main Issue: Causation.
The judge dealt with this question as follows:-
"31 If Warrington had not been content with the Higginson reassurance, what
action could he have taken? He could have sought the advice of a specialist
heating engineer with experience of the textile industry. Had he done so, the
chances of such a specialist either having knowledge of phenolic yellowing or
having access to the kind of research that would lead to such knowledge seem to
me on the evidence to have been low.
32 Warrington's course of action, in these circumstances, would probably have
involved a return to Higginson with a request that he investigate the risk
further. The question is whether an enquiry of the Scientific Services
Department would have kept the trail alive until an organisation such as BTTG
was reached.
33 It seems to me that the chances were that the Scientific Services Department
would have pointed Warrington or any specialist whom he chose to instruct to a
university department or a similar organisation. I base this view on the
simple premise that they probably had information relating to the discoloration
of materials caused by oxides of nitrogen. I have considered Dr Bailey's
agreed fax of 14 July 1998 in which he gives the results of various searches
using various keywords. It is, of course, possible that either Warrington,
British Gas' Scientific Services Department or a specialist instructed by MHA
would have given up his or their search on meeting with such lack of success.
By the same token, it is possible that the trail would have gone cold before
any information materialised which would have deterred JDW from going ahead
with the direct fired system. My judgment, however, is that the chances were
more in favour of a proper investigation revealing that the risk of garments
being discoloured in some way by a direct gas fired heating system was not
worth taking. In any event, in my view, JDW by reason of MHA's failure to
investigate the risk further were deprived of reaching an informed decision on
a suitable heating system."
The Appeal on the Causation Issue.
Mr Grime submits there is no evidence to support the judge's conclusion. The
negligence consisted "in discounting the risk of discoloration and, therefore,
not setting in motion a trail of investigation. The causation issue as it was
posed in paragraph 3 of the judgment was "whether such (further) investigation
would in fact have uncovered an unacceptable risk of discoloration of
textiles".
The first question is what ought to have been done to investigate the risk.
The judge found in paragraph 21 of his judgment that if Mr Warrington
had considered that there was a risk which merited further
investigation, he would have taken appropriate steps to bring that to
the attention of JDW via Fowler and to have investigated further. But how
would he have conducted that investigation? The judge's view was that he would
have gone back to Mr Higginson and requested British Gas to investigate the
risk further. For my part I am far from certain that would have happened.
Assuming, for the purpose of this argument, that Mr Warrington had gone back to
Mr Higginson then Mr Higginson said in paragraph 33 of his witness
statement:-
"Had he asked me to advise as to the risk of discoloration I would almost
certainly have referred him to our Scientific Services Department".
But what then?
The judge's conclusion was:-
"... the chances were that the Scientific Services Department would have
pointed Warrington ... to a university department or similar organisation. I
base this view on the simple premise that they probably had information
relating to the discoloration of materials caused by oxides of nitrogen".
This passage is open to the criticism that the judge is treating causation as a
matter of chance rather than a matter of fact to be found on a balance of
probabilities. Be that as it may, the more pertinent criticism is that there
was no evidence to support the premise upon which the judge proceeded. As for
the Scientific Services Department's actual involvement, all the evidence
reveals is that Mr Higginson said (transcript 20th July p. 9-10):-
"Q. And when you say that you discussed the reasons why the disclaimer was
there, what did you say to Mr Warrington, what explanation did you give him as
to why the disclaimer was there?
A. Well again, it's not exactly recollection, but I would have expected, I
would have said, British Gas at some time previously had experienced a problem
with a foam manufacturer, where discoloration of the foam had taken place, and
we were just generally wary about direct fired in any atmosphere where
materials, fabrics, may be contained. But we had only ever experienced a
problem with foam.
Q. Right. If you had only ever experienced a problem with foam, why was the
disclaimer extended, as you already explained to His Honour, to fabrics and
other materials?
A. I think I was just generally wary about any potential problems with the
fabric. I certainly did not understand the problem at the time. British
Gas, as far as I am aware, didn't commission any investigations into the
problem. It was just general guidance to be wary of a direct-fire in an
atmosphere that may have contained fabrics".
I have emphasised that passage. If there was no investigation into the problem
there is not much to support the premise that discoloration of fabrics was
caused by oxides of nitrogen. There is no knowing what information the
department had about this arcane phenomenon phenolic yellowing or as to the
cause of the discoloration of the foam and what information it had which led it
to be wary of discoloration of fabrics.
There was no evidence of direct involvement of the department in the problems
which related to the provision of this particular heating system. It was to
have been supplied by PC Rapid. They endeavoured to persuade Mr Higginson not
to include the disclaimer in the British Gas quotation. PC Rapid wrote to
British Gas to confirm that none of their customers had experienced that
problem even "in sensitive areas which might be prone to discoloration". Asked
about that Mr Higginson said (transcript p. 24):-
"Q. Is the reason you didn't run the thing passed your Technical Services
people that you were quite happy with what PC Rapid said and were prepared to
rely on it yourself?
A. Yes, I was fairly happy with what they were putting forward. I didn't
really believe there would be a problem."
The matter not having been referred to the Scientific Services Department then,
there is simply no knowing what information they had relating to discoloration
caused by the nitrous oxides produced by the direct fired gas heating
system.
The only basis for the judge's conclusion that the chances were that that
department would have pointed Warrington to a university department or similar
organisation appears to me to have been this taken from page 7 of the
transcript of Mr Higginson's evidence:-
"Q. Did you, in your discussions with Mr Fowler, ever advise him that there was
a risk of discoloration, but that it was not a serious risk?
A. I don't recall precisely, but, yes, I would have said, probably, that there
was a risk but not a serious one.
Q. Right. Did Mr Fowler ever ask you to further investigate and advise about
the question of discoloration?
A. No.
Q. If he had, what steps would you have taken?
A. At the time we had an in-house scientific service. I would have referred it
to them, and they could have possibly commissioned an external
report.
...
Q. Right. You say that the experts within British Gas would themselves have
gone to an external expert?
A. I couldn't have said what they would have done, but I don't really
think - this is quite a specialised subject - I don't think really they would
have been experienced at something such as this, so I would assume they
might have sought external advice." Again I add the emphasis.
This is the flimsiest of foundations upon which to rest a finding of fact to be
made on a balance of probability that the trail of investigation would have
revealed the true extent of the risks. In my judgment the balance of
probabilities points the other way. One cannot overlook how arcane a subject
phenolic yellowing is. The evidence was that it was not well-known in the
textile industry. It was not known to the claimants nor to Mr Fowler who had
experience with Littlewoods. It was unknown to architects and to heating
engineers. If Mr Warrington had been doubtful about the proposed direct fired
heating system, he was, in my judgment, more likely to make further enquiries
of specialist heating engineers than of British Gas. As the judge found, the
chances of such a specialist having relevant knowledge was `low'. If it was
low it was against the balance of probability. So the balance of probability,
not just, as the judge held, the possibility, is that the trail would
indeed have gone cold. If so that is an end of the matter. That conclusion
obviates the need to consider the hypothetical matters of how the claimant
would have reacted to the delays and the need for further investigation given
their increasing urgency for decision and their own preference for this system.
We do not need to enter Allied Maples Group Ltd. v Simmons and Simmons
[1995] 1 W.L.R.672 territory and assess chances.
My conclusion is that there was no evidence to support the judge's findings
which could only have been based upon speculation. The claimant could not
establish that the further investigation would in fact have uncovered an
unacceptable risk of discoloration. The claim should have been dismissed on
the causation issue.
I would allow the appeal accordingly.
Lord Justice Sedley:
I agree with Lord Justice Ward that this appeal fails in relation to negligence
but succeeds in relation to causation. This judgment is confined to the
question whether there is room in a case such as the present for a
Bolam-type test of architect's negligence.
The present case, in summary, concerns the failure of an architect to be
alerted, and in turn to alert the client, by reason of a supplier's disclaimer
of liability for damage which, though otherwise unforeseeable, eventuated.
McNair J's charge to a civil jury in Bolam v Friern Hospital Management
Committee [1957] 1 WLR 583 is the source of a test of medical competence
now adopted by the House of Lords in Bolitho v City and Hackney Health
Authority [1998] AC 232: a doctor
"is not guilty of negligence if he has acted in accordance with a practice
accepted as proper by a responsible body of medical men skilled in that
particular art."
It follows, in Mr Grime's submission, that acceptable evidence called by the architect to the effect that other responsible members of his profession would have acted no differently concludes a negligence action in his favour.
Mr Grime relies principally on the decision of this court in Nye Saunders
and Partners v Alan E Bristow (1987) 37 BLR 92. There an architect had
failed to include in his estimate of building costs an allowance for inflation.
His action for fees was defeated by a defence that the consideration had failed
by reason of negligence. Stephen Brown LJ, giving the single reasoned judgment,
said:
"The duty and standard of care to be expected from [the architect] was accepted
as being that which aplied to any profession or calling which required special
skill, knowledge or experience. The test is that formulated in a medical
negligence case, Bolam. Where there is a conflict as to whether he has
discharged that duty, the courts approach the matter upon the basis of
considering whether there was evidence that at the time a responsible body of
architects would have taken the view that the way in which the subject of
enquiry had carried out his duties was an appropriate way of carrying out the
duty, and would not hold him guilty of negligence merely because there was a
body of competent medical opinion which held that he was at fault."
It is important, however, to see how the case was then decided. The architect had called a distinguished member of his profession to say that it was not common practice at the relevant time to provide for inflation. But when asked about drawing the client's attention to the fact that the price was only the current price, the witness had replied:
"Of course that, I should have thought, would have been the prudent thing to
do."
Upholding the judge's conclusion that no responsible body of architects thought that a warning about inflation was unnecessary (not an obvious finding in the face of the professional evidence), Stephen Brown LJ said:
"He was entitled to take the view that the evidence of [the experts called for
the architect] did not constitute evidence of a responsible body of architects
accepting as a proper practice that no warning of inflation need be given when
providing an estimate of the cost of proposed works. It seems to me that the
learned judge had ample evidence before him which entitled him to find that
there was a failure on the part of [the architect] to draw the attention of the
client to the fact that inflation was a factor ...and that that failure
constituted a breach of the Hedley Byrne type duty to the [client]."
It can be readily seen that this reasoning does not in the event depend or
indeed draw upon Bolam: it derives from the duty which the law itself
exacts in relationships of the kind before the court. Had the Bolam
standard been applied, the expert's evidence of common practice - which was
not itself disbelieved - would have been enough to protect the architect. It
could not even have been undermined by the admission that it would have been
prudent to do otherwise. What led this court to uphold the decision below was
that it found a straightforward breach of duty.
This is not to say that the Bolam test is restricted to medical
decisions. Plainly it is not. Lloyd LJ said as much, and explained why it was
so, in Gold v Haringey Health Authority [1988] QB 481, 489. He cited
what Lord Diplock said in Saif Ali v Sydney Mitchell and Co. [1980] AC 198, 220:
"No matter what profession it may be, the common law does not impose on those
who practise it any liability for damage resulting from what in the result turn
out to have been errors of judgment, unless the error was such as no reasonably
well-informed and competent member of that profession could have made."
Equally plainly, however, it is not to every allegation of negligence that
this test can be appropriately applied. If it were, the civil equivalent of the
so-called Guinness defence would become a regular feature of negligence
litigation. What then is the dividing line?
It seems to me that both tests are aspects of a single principle. The
principle, broadly put, is that professional negligence means falling below a
proper standard of competence (see Jackson and Powell, Professional
Negligence, 4th ed, 1997, para. 1-04) . In most cases the court
will arrive, commonly with the help of evidence from the particular profession,
at its own judgment of what that standard is. But in many (not all) cases where
the profession itself embraces more than one tenable view of acceptable
practice, competence will not be measurable by a single forensically determined
standard; so that where there is more than one acceptable standard, competence
has to be gauged by the lower or lowest of them.
In such cases it is the principle itself which requires the adoption of a
Bolam-type test. To do otherwise would allow the law to dictate the pace
and parameters of change in professions of which lawyers may know little or
nothing. But to extend the Bolam principle to all allegations of
professional negligence would be to make the professions, to an extent large
enough to accommodate much harm to the public, judges in their own cause.
It may not be feasible, and it would certainly be unwise, to try to draw a
bright line between the two applications of the principle otherwise than case
by case. Nye Saunders, despite the concession that it was governed by
the Bolam test, was manifestly an exercise in standard-setting by the
court itself and should be so regarded. But in general it can be said that the
Bolam test is typically appropriate where the neglect is said to lie in
a conscious choice of available courses made by a trained professional, and
that it is typically inappropriate where it is in an oversight that the neglect
is said to lie. This is not least because it is likely to be much easier to
characterise the former than the latter as errors of judgment.
In the present case the court is asked to say that the expert evidence called
by the defendant concludes the case in his favour, since it establishes the
existence of a respectable school of practice which would have done as he did.
That the judge preferred an opposing school is, it is argued, nothing to the
point.
Although my reason for rejecting this argument is not quite that of the judge -
who based himself on whether the court needed expert help at all - my
conclusion is the same as his: the defendant overlooked a risk which he ought
to have brought to the claimants' attention and which later proved real. This
involves no inquiry into competing schools of professional practice: it
requires the court to decide, with whatever help the expert evidence affords,
whether a competent architect could have overlooked the implications of the
disclaimer. The judge answered the question, as I would, in the negative.
Lord Justice Nourse: I agree.
Order: Appeal Allowed. Judge's order discharged and judgment for defendant
in respect of heating installation claim. Appellant shall have all its costs
except that it will only have two-thirds of the costs in the appeal. Leave to
appeal to the House of Lords refused.
(Order does not form part of the approved judgment.)