Negligence – Liability – Residential property – Serious flooding occurring in apartment building as result of pipes bursting under pressure – Claimant freehold owner issuing proceedings against defendant designer of cold water system in building – Whether defendant being liable for flooding – Whether defendant being negligent in failing to give advice to take precautions against risk of pipes bursting – Whether claimant establishing that advice followed if given – Claim dismissed
The claimant was the freehold owner of a prestigious apartment building in Knightsbridge, London. Shortly after the building had been substantially completed, there was serious flooding resulting from two failures of the cold water pipework. The flooding occurred when abnormally high pressure surges caused two pipes to burst. The claimant commenced proceedings against the defendant company, which had designed the cold water system, contending that it was liable for the flooding.
The principal issues for decision were: whether competent engineers in the defendant’s position of similar experience and resources would have acted in the same manner as the defendant; whether the defendant should have realised that there was a possibility that abnormally high pressure surges could damage the pipework and its fittings which could be countered by fitting anti-surge valves at the top of each riser as required; and whether, if causation was proven, the damage could have been prevented if the defendant had taken the measures it ought to have done to prevent the flooding. A further question arose whether, even if the defendant had advised the claimant to take suitable precautions, the claimant would have taken that advice.
In the case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, it had been established that a man would not be negligent, if he was acting in accordance with a practice accepted as proper by a responsible body of persons skilled in a particular art, merely because there was a body of opinion that would take a contrary view. The defendant argued that none of the leading building services practices in the UK had identified the problem prior to the flooding in the claimant’s building. Accordingly, it could not have been negligent if what it had done was no different to that being done at the time by apparently competent engineers of similar experience and resources.
Held: The claim was dismissed.
A professional person did not warrant that the course of action he took or advised his client to follow would be successful. If a professional person adopted or advised a course of action which, although unsuccessful or shown to be wrong, was a course of action that was in accord with or was adopted at the time by a responsible body of opinion held by practitioners in that discipline, he would not be negligent provided that that body of opinion had a logical or rational basis. If the exponents of the responsible body of opinion relied on could not demonstrate that the opinion had a logical or rational basis, the defence would be unlikely to succeed. If the reason why the impugned course of action or advice was wrong was that the professional man in question and others in his position did not identify or foresee a particular risk or sequence of events, then there was probably no room for the application of the Bolam test. In those circumstances, and where the claimant had shown that there was a case to answer, there would usually be an evidential onus on the defendant to show what he had done and the reasons for it. In considering whether a particular engineer had been negligent, it was relevant to take into account what other engineers faced with similar situations were doing: Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 and J D Williams & Co Ltd v Michael Hyde & Associates Ltd [2001] BLR 99 applied; Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp (a firm) [1979] Ch 384 and Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405 considered.
On the evidence in the present case, the defendant should have appreciated that there was a possibility of abnormally high pressure surges occurring which could result in immediate damage to the pipework and its fittings. The failure in the pipes would probably have been prevented if anti-surge valves had been fitted in the appropriate places. However, the claimant had failed to prove that, if it had been advised to fit such valves, it would have accepted that advice. If anything, the evidence showed to the contrary. Alternatively, if the claimant had accepted the advice to install anti-surge valves at the top of each riser, it was unlikely on the evidence that they would have been installed in time to prevent the failures that had occurred to the pipes in the claimant’s property. Accordingly, the claimant had not established that any failure by the defendant to give appropriate advice had caused the damage alleged.
David Sears QC and Benjamin Pilling (instructed by DCA Beachcroft LLP) appeared for the claimant; Roger ter Haar QC and Richard Coplin (instructed by CMS Cameron McKenna LLP) appeared for the defendant.
Eileen O’Grady, barrister
