Tesco v Constain - Thomson Reuters

2003 WL 21729349 Page 702003 WL 21729349 (QBD (T&CC)), [2003] EWHC 1487(Publication page references are not available for this document.)contract with Tesco in the terms for which Tescocontended I should still have found that the duty ofcare assumed by Costain was that which I haveindicated in the previous paragraph. That is for anumber of reasons. The first is that it is contrary toprinciple to impose upon a party a duty of care inrespect of work which everyone knows is to be,and is in fact, undertaken by someone else. Such aduty of care cannot sensibly be characterised as aduty on the relevant party to do something withreasonable skill and care, for he is not doinganything. Rather it would be in the nature of aguarantee that the party actually doing the relevantwork would do it with reasonable skill and care.The second is that the duty of care contended for inthe present case was actually not simply a duty thatdesign work would be undertaken with reasonableskill and care, but that the appropriate fire stoppingand inhibiting works which should have beendesigned would then be constructed, andconstructed without additional cost to Tesco. Thatgoes far beyond any obligation to take care or tosee that care is taken, involving, as it would,incurring expense in order to provide an amenity toTesco. The law does, in limited circumstances,impose a duty upon a landowner to incur expensein order to deal with the consequences of anuisance. However, the sort of obligationcontended for arising under a duty of care in thepresent case is manifestly one that can, in myjudgment, only arise under a contract. Inconsidering the duty of care contended for in thepresent case it is also material, as it seems to me, tonotice that the breach of it is not said itself to havecaused any loss directly. No part of the Storecollapsed as a result of the absence of appropriatefire stopping and inhibiting works, or anything likethat. What is contended is that, had the appropriateworks been undertaken, the consequences of a fire,for which neither Costain nor PHJ were in anysense responsible, would have been less severe. Onanalysis the nature and scope of the duty contendedfor were thus a duty not to cause Tesco theeconomic loss resulting from the fire. Shorn of itslegal sheep's clothing the duty contended foramounts to a duty to provide effective fire stoppingand inhibiting works or to assume the risk ofdamage by fire to the Store and its contents. Evenif, which I do not consider would be right, it wereappropriate to impose upon Costain a duty of careto design and supply without additional cost toTesco appropriate fire stopping and inhibitingworks, it is well-arguable, it seems to me, that thescope of such duty was only to save Tesco fromhaving to incur the cost of providing the relevantfire stopping and inhibiting measures. That wouldhave been the obvious direct consequence of notdesigning and supplying the missing fire stoppingand inhibiting works. To contemplate that thescope of the duty extended to saving Tescoharmless from the consequences of a fire the effectsof which would or might have been less severe hadthe missing fire stopping and inhibiting works beenpresent seems to me to raise precisely the sameissue considered by the House of Lords in SouthAustralia Asset Management Corporation v. YorkMontague Ltd. and illustrated by Lord Hoffman'sexample of the mountaineer and his knee. It wouldseem that the absence of fire stopping andinhibiting works in the present case no more causedthe fire which destroyed the Store than thenegligent assessment of the knee by the doctor inLord Hoffman's example caused the mountaineer'saccident. However, I have not had the benefit offull argument on this point and it is not actuallymaterial to any issue which I have to decide at thisstage. It may be necessary to grapple with it in thesecond round of this action.The Costain 1993-1994 Tortious Duties Issues234. During the course of the hearing before methe answers to these issues were agreed betweenMr. Stewart on behalf of Tesco and Mr. Taverneron behalf of Costain to be:--"It being accepted by Costain that in undertakingthe inspection and in making the statements in theletters dated 19 October 1993 and 27 May 1994,Costain undertook to Tesco a common law duty ofcare to undertake a detailed inspection of firebarriers with reasonable skill and care, and toexercise reasonable skill so as to ensure that thestatements made in the letters (of 19 October 1993and 27 May 1994) were accurate, the questions ofthe nature and scope of that duty of care, includingthe meanings of "a detailed inspection" and "firebarriers" be left over to the trial in October."235. I agree with the answers to the Costain 1993-1994 Tortious Duties Issues set out in the agreedformulation, insofar as there given, and I also agreethat the issues left over cannot be resolved on theevidence which has been led in the present trial.The Costain Accrual of Cause of Action Issues236. Because of the possible implications of theanswers to these issues, with which PHJ was notdirectly concerned, for issues with which it wasdirectly concerned, PHJ, by Mr. Coulson and Mr.Holwill, took an active interest in these issues andadopted a position somewhat different to thatadopted on behalf of Costain by Mr. Taverner andMr. Hargreaves in respect of Issue 11. Mr. CoulsonCopr. © West 2004 No Claim to Orig. Govt. Works