Brian Warwicker v. HOK Int.'l
When assessing - under the Civil Liability Contribution Act 1978 - whether a party is liable to make a contribution to the damages the other party has paid to a third party, the court is not restricted to considerations of strict legal causation, but can take into account wider issues of "responsibility", provided the end result is just and equitable
DMC Category Rating: Confirmed
The development opened in November 1998. The following year, remedial works suggested by Brian Warwicker Partnership ("BWP") (the mechanical engineering consultants on the project) failed to remedy the problem. In January 2000, the owners engaged new mechanical engineers and the recommended work was completed by December 2001.
In March 2003, the owners sued BWP for negligence and breach of contract, claiming as damages the cost of the additional remedial work. BWP brought the architects, HOK International, into the action, claiming that the wind problem was exacerbated by the design of the façade, which created a funnelling effect into the building.
In April 2004, the owners' claim against BWP was settled without admission of liability for £1.25m in damages, interest and costs. The Third Party proceedings between BWP and HOK went to trial, and, in November 2004, judgment was given against HOK for £398,500 plus interest. HOK appealed.
The main point on appeal was whether the recorder, in assessing whether BWP had a contribution claim against HOK, was entitled to take into account factors that did not directly cause the loss.
HOK's breaches, however, were not directly causative of the loss claimed (which was the additional remedial costs incurred by the owners). Nevertheless, the recorder found that acts and omissions that were not causative could be taken into account for the purpose of assessing what contribution should be ordered under the Civil Liability (Contribution) Act 1978.
Under section 2(1) of the Act:
In Resource America International Ltd v Platt Site Services and Barkin Construction Ltd  EWCA (CIV) 655, a fire was started by a welding contractor carrying out hot work. It was found that the employer negligently instigated the work, left the site as soon as the fire started to avoid criticism and pretended to have left much earlier. The Court of Appeal held that the employer's conduct was not causative, but, nevertheless, could be taken into account in assessing contribution. The court could take a broader view than strict causative responsibility.
Lord Justice Arden, however, sounded a note of caution. If the court was able to place unrestricted weight on non-causative material, there would be no limit on the matters that it could take into account. The wording of section 2(1) directed the court to attach most weight to the defendant's responsibility for the damage in question. Non-causative factors might be relevant to the court's evaluation of blameworthiness but, in her provisional view, if non-causative material was to be brought into account, it must play only a limited role. The resulting order for contribution must still be just and equitable within section 2(1).
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