International Construction Law Review
LIABILITY FOR DESIGN OF A SYSTEM: TREBOR BASSETT V ADT FIRE
PROFESSOR SARAH LUPTON1
MA, DipArch, LLM, RIBA, FCIArb, CArb
INTRODUCTION
The case of Trebor Bassett Holdings Ltd v ADT Fire and Security plc
2 concerns a contract to design, supply, install and commission a fire detection and suppression system for a popcorn factory. The case raises interesting questions about the implication of terms within such contracts, and the interpretation of express terms concerning the system’s performance.
Following installation a fire occurred which the system failed to extinguish. The fire destroyed the factory and caused over £100 million3 worth of damage. The crucial question in Trebor Bassett was whether the obligation of the contractor (ADT) was a strict one, i.e. was ADT absolutely liable to provide something that would work, or was it subject to the lesser obligation to use reasonable skill and care. The issue was crucial because, if the latter, the Contributory Negligence Act 1942 would apply, which would mean that if it could be shown that the employer (Cadbury4) was also negligent, and this had contributed to the losses, any damages to be paid by ADT could be reduced.
By the time the case reached the Court of Appeal ADT had accepted that it had a duty to design the system with reasonable skill and care, and that it had been negligent in its design. The judge at first instance, Coulson J, had decided that the employer was also negligent because it failed to take the advice of its own property department regarding fire prevention, and failed to install sprinklers in a factory where there was a clear risk of fire. In the event that the Act applied, Cadbury would be 75% responsible for the losses.
Fortunately for ADT, Cadbury failed to persuade the judge that the obligation was strict, either as an implied term, or on construction of the
1 Sarah Lupton is a partner in Lupton Stellakis, architects, and holds a personal chair at Cardiff University. She is author of Which Contract? and a series of books on the JCT standard forms of contract, published by RIBA Publishing. She has recently completed a new edition of Cornes and Lupton’s Design Liability in the Construction Industry, published by Wiley-Blackwell.
2 [2011] EWHC 1936 (TCC); [2011] BLR 661 (CA) [2012] EWCA Civ 1158.
3 [2011] EWHC 1936 (TCC) at paragraph 3.
4 Trebor Bassett owned the factory, which was used by Cadbury, who entered into the contract with ADT. Although initially both Trebor Basset and Cadbury sued ADT, Trebor Basset took no part in the appeal.
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