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Cite as: [1987] UKHL 3

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JISCBAILII_CASE_TORT

    Parliamentary Archives,
    HL/PO/JU/18/247

    Rev. F. T. Smith and others (Appellants)

    v.
    Littlewoods Organisation
    Limited (Respondents)

    (Scotland)
    Maloco (Appellant)

    v.
    Littlewoods Organisation
    Limited (Respondents)

    (Scotland)
    (Consolidated appeals)

    JUDGMENT

    Die Jovis 5° Februarii 1987

    Upon Report from the Appellate Committee to whom was referred
    the Cause Rev. F. T. Smith and others against Littlewoods
    Organisation
    Limited and Maloco against Littlewoods Organisation
    Limited (Consolidated Appeals), That the Committee had heard
    Counsel on Monday the 13th and Tuesday the 14th days of October 1986
    upon the Petitions and Appeals of The Reverend Frank T. Smith,
    William G. Kerr and Archibald D. Crawford, of St. Paul's Church of
    Scotland, Canmore Street, Dunfermline, and of Angelo Maloco,
    residing at 28 Garvock Hill, Dunfermline, Fife, praying that the
    matter of the Interlocutors set forth in the Schedule thereto,
    namely Interlocutors of the First Division of the Court of Session
    in Scotland of the 19th of November 1985, might be reviewed before
    Her Majesty the Queen in Her Court of Parliament and that the said
    Interlocutors might be reversed, varied or altered or that the
    Petitioners might have such other relief in the premises as to Her
    Majesty the Queen in Her Court of Parliament might seem meet (which
    said Appeals were by an Order of the House of 19th February 1986
    consolidated); as upon the case of the Littlewoods Organisation
    Limited lodged in answer to the said Appeals; and due consideration
    had this day of what was offered on either side in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and Temporal
    in the Court of Parliament of Her Majesty the Queen assembled, That
    the said Interlocutors of the 19th day of November 1985 complained
    of in the said Appeals be, and the same are hereby, Affirmed and
    that the said Petitions and Appeals be, and the same are hereby,
    dismissed this House: And it is further Ordered, That the Appellants
    do pay or cause to be paid to the said Respondents the Costs
    incurred by them in respect of the said Appeals, the amount thereof
    to be certified by the Clerk of the Parliaments if not agreed
    between the parties: And it is also further Ordered, That unless the
    Costs certified as aforesaid shall be paid to the Respondents
    entitled to the same within one calendar month from the date of the
    Certificate thereof the Cause shall be, and the same is hereby,
    remitted back to the Court of Session in Scotland or to the Judge
    acting as Vacation Judge to issue such Summary Process or Diligence
    for the recovery of such Costs as shall be lawful and necessary.

    Cler: Parliamentor:

    Judgment: 5.2.87

    HOUSE OF LORDS

    REV. F. T. SMITH AND OTHERS
    (APPELLANTS)

    %*

    "

    LITTLEWOODS ORGANISATION LIMITED
    (RESPONDENTS) (SCOTLAND)

    MALOCO
    (APPELLANT)

    v.

    LITTLEWOODS ORGANISATION LIMITED
    (RESPONDENTS) (SCOTLAND)

    (CONSOLIDATED APPEALS)

    Lord Keith of Kinkel
    Lord Brandon of Oakbrook
    Lord Griffiths
    Lord Mackay of Clashfern
    Lord Goff of Chieveley


    LORD KEITH OF KINKEL

    My Lords,

    I have had the advantage of considering in draft the
    speeches to be delivered by my noble and learned friends Lord
    Mackay of Clashfern and Lord Goff of Chieveley. I agree with
    them, and for the reasons they give would dismiss these appeals.

    LORD BRANDON OF OAKBROOK

    My Lords,

    It is axiomatic that the question whether there has been
    negligence in any given case must depend on the particular
    circumstances of that case. That being so, I do not think that
    these appeals can in the end be determined by reference to other
    reported cases in which the particular circumstances were
    different, even though some degree of analogy between such other
    cases and the present one can legitimately be drawn. Nor do I
    think that it is possible, however helpful it might otherwise be, to

    - 1 -

    lay down any general principle designed to apply to all cases in
    which the negligence alleged against a person involves the
    unauthorised acts of independent third parties on premises owned
    or occupied by that person.

    The particular facts of the present case appear to me to
    raise two, and only two, questions, on the answers to which the
    determination of the appeals depends.

    The first question is what was the general duty owed by
    Littlewoods, as owners and occupiers of the disused cinema, to the
    appellants, as owners or occupiers of other buildings near to the
    cinema. The answer to that question is, in my view, that
    Littlewoods owed to the appellants a duty to exercise reasonable
    care to ensure that the cinema was not, and did not become, a
    source of danger to neighbouring buildings owned or occupied by
    the appellants.

    The second question is whether that general duty
    encompassed a specific duty to exercise reasonable care to prevent
    young persons obtaining unlawful access to the cinema, and, having
    done so, unlawfully setting it on fire. The answer to that
    question, in accordance with general principles governing alike the
    law of delict in Scotland and the law of negligence in England,
    must depend on whether the occurrence of such behaviour was
    reasonably foreseeable by Littlewoods. It should have been
    reasonably foreseeable by Littlewoods if they had known of the
    activities of young persons observed by certain individuals in the
    locality. But they did not know of such activities because the
    individuals concerned did not inform either Littlewoods or the
    police of them, nor did the police themselves observe them. In
    the absence of information about such activities, either from the
    individuals referred to or from the police, I am of opinion that the
    occurrence of the behaviour in question was not reasonably
    foreseeable by Littlewoods. I conclude, therefore, that the general
    duty of care owed by Littlewoods to the appellants did not
    encompass the specific duty referred to above.

    For these reasons I would dismiss the appeals.

    LORD GRIFFITHS

    My Lords,

    I regard these appeals as turning upon the evaluation and
    application of the particular facts of this case to a well
    established duty and standard of care. I agree so fully with the
    statement and evaluation of the facts appearing in the speech of
    my noble and learned friend, Lord Mackay of Clashfern, that I can
    state my own reasons for dismissing these appeals very shortly.

    The duty of care owed by Littlewoods was to take
    reasonable care that the condition of the premises they occupied
    was not a source of danger to neighbouring property.

    - 2 -

    The standard of care required of them was that stated in
    general terms by Lord Radcliffe in Bolton v. Stone [1951] A.C.
    850, 868 and expanded in more particularity by Lord Wilberforce in
    Goldman v. Hargrave [1967] 1 AC 645 when dealing with a fire
    upon premises caused by an outside agency. I refrain from citing
    these passages as both appear in the speech of my noble and
    learned friend, Lord Mackay of Clashfern.

    Listening to the seductive way in which Mr. MacLean
    developed his argument on the facts step-by-step, as described by
    Lord Mackay, I was reminded of the fable of the prince who lost
    his kingdom but for the want of a nail for the shoe of his horse.
    A series of foreseeable possibilities were added one to another
    and, hey presto, there emerged at the end the probability of a fire
    against which Littlewoods should have guarded. But, my Lords,
    that is not the common sense of this matter.

    The fire in this case was caused by the criminal activity of
    third parties upon Littlewoods' premises. I do not say that there
    will never be circumstances in which the law will require an
    occupier of premises to take special precautions against such a
    contingency but they would surely have to be extreme indeed. It
    is common ground that only a 24-hour guard on these premises
    would have been likely to prevent this fire, and even that cannot
    be certain, such is the determination and ingenuity of young
    vandals.

    There was nothing of an inherently dangerous nature stored
    in the premises, nor can I regard an empty cinema stripped of its
    equipment as likely to be any more alluring to vandals than any
    other recently vacated premises in the centre of a town. No
    message was received by Littlewoods from the local police, fire
    brigade or any neighbour that vandals were creating any danger on
    the premises. In short, so far as Littlewoods knew, there was
    nothing significantly different about these empty premises from the
    tens of thousands of such premises up and down the country.
    People do not mount 24-hour guards on empty properties and the
    law would impose an intolerable burden if it required them to do
    so save in the most exceptional circumstances. I find no such
    exceptional circumstances in this case and I would accordingly
    dismiss the appeals.

    I doubt myself if any search will reveal a touchstone that
    can be applied as a universal test to decide when an occupier is
    to be held liable for a danger created on his property by the act
    of a trespasser for whom he is not responsible. I agree that mere
    foreseeability of damage is certainly not a sufficient basis to
    found liability. But with this warning I doubt that more can be
    done than to leave it to the good sense of the judges to apply
    realistic standards in conformity with generally accepted patterns
    of behaviour to determine whether in the particular circumstances
    of a given case there has been a breach of duty sounding in
    negligence.

    - 3 -

    LORD MACKAY OF CLASHFERN

    My Lords,

    The defenders and respondents in these consolidated appeals,
    to whom I shall refer as "Littlewoods," purchased the Regal
    Cinema in the centre of Dunfermline from its previous owners
    with entry on 31 May 1976. Littlewoods' intention was to
    demolish the cinema within a short time and to replace it by a
    supermarket. On 5 July 1976, in consequence of a fire which
    began in the cinema, a cafe and billiard saloon which lay close to
    the cinema on the west known as the Cafe Maloco was seriously
    damaged and St. Paul's Church which lay also to the west but at
    a slightly greater distance from the cinema was so substantially
    damaged that it had to be demolished. Dunfermline lies within
    the area of the Fife constabulary. The issues in both actions are
    the same and they have been heard together at every stage. The
    owners of the affected properties to whom I shall refer as "the
    appellants" claimed against Littlewoods for the damage done to
    their properties alleging that the damage was caused by negligence
    on the part of Littlewoods. Littlewoods, in turn, claimed that if
    they were at fault the Chief Constable of the Fife Constabulary
    or his officers were also at fault and he should be held liable to
    make a contribution to the award made against Littlewoods. The
    Lord Ordinary held that the claims had been established against
    Littlewoods and pronounced awards in favour of both owners. He
    found that Littlewoods' case against the Chief Constable had not
    been established. Littlewoods accepted the decision relating to the
    Chief Constable but reclaimed against the awards which had been
    made against them. The First Division of the Inner House of the
    Court of Session 1986 S.L.T. 272 unanimously allowed the
    reclaiming motions and recalled the Lord Ordinary's interlocutors.
    The First Division also dealt with matters relating to the size of
    the award made in favour of the owners of St. Paul's Church.

    The appellants have now appealed to this House and have
    argued that the Lord Ordinary's interlocutors should be restored,
    subject to alteration in the amount awarded in favour of the
    owners of St. Paul's Church. No question relating to the size of
    the awards remains outstanding between the parties; they are
    agreed on the amounts to be awarded if the appeals succeed.

    The cinema comprised a substantial brick-built auditorium
    with a balcony at the north end and a flat timber and felt
    covered roof on a steel frame. It was reached from the High
    Street by a lengthy foyer partly of similar construction and
    otherwise traditionally stone-built and slated, three storeys in
    height. The main building of the cinema was set back a
    considerable distance from the High Street. To the east of the
    cinema entrance in the High Street there was a passageway known
    as Macpherson's Close which ran down the length towards the
    south on the east side of the main building. Immediately to the
    south of the main building lay the car park to which entry was
    gained from Canmore Street lying to the south of the property.
    Macpherson's Close was regularly used by the public as a short cut
    from Canmore Street to the High Street. Another close known as
    the West Close ran from the north side of the car park round the
    west side of the main building and then at the north end of the
    main building turned eastwards to join Macpherson's Close. This

    - 4 -

    last section of the West Close passed under the section of the
    cinema which connected its main building with the front entrance
    in the High Street. On the west side of West Close was Cafe
    Maloco and to the south west of the cinema and beyond certain
    properties lying immediately to the west of the West Close lay St.
    Paul's Church, which was a Victorian Gothic building with a small
    wooden turret. The main building of the cinema had a number of
    exit or fire doors with locking bars designed to be opened only
    from the inside which were set in the walls of the cinema.

    The last showing of a film in the cinema took place on 29
    May 1976. Although legal entry was given on 31 May 1976 the
    keys were not handed over to Littlewoods until about 14 June.
    During that period the previous owners employed contractors to
    remove fittings and equipment from the cinema which were worth
    taking away but which were of no interest to Littlewoods. Before
    these contractors had finished their task contractors employed by
    Littlewoods arrived at the premises to make certain site
    investigations and to do some preliminary work on foundations.
    Littlewoods
    ' contractors were present and working for about three
    weeks; the first two were spent in the area of the cinema car
    park and thereafter they spent about four days working inside the
    premises. From about the end of the third week in June 1976 the
    cinema remained empty and unattended by any persons employed
    by or giving services to Littlewoods.

    The evidence established that children began to overcome
    the security of the cinema building by breaking into it in one way
    or another in the period of about four days when Littlewoods'
    contractors were doing preliminary work inside the premises during
    or towards the end of the third week in June 1976. Although
    these contractors locked and secured the premises when they
    finished work each night, they discovered on their return in the
    morning clear signs that the premises had been forcibly entered.
    Some of the fire doors had been forced open from inside and the
    locking bars had been broken. The contractors then had to secure
    the doors which had been so affected by tying them with rope to
    the stage. When they finished their work they left the premises
    as secure as they could make them. Thereafter the security of
    the premises was again overcome by children and young persons
    and children and young persons resorted to the premises with
    increasing regularity for play, horseplay and the pleasure of making
    a mess and breaking whatever they could find to break. The Lord
    Ordinary held that it was amply established that by the first few
    days of July 1976 anyone with half an eye who made use of
    Macpherson's Close could have seen that the main building of the
    cinema was no longer lockfast and was being regularly entered by
    unauthorised persons. Paper and debris were scattered about the
    auditorium and in Macpherson's Close outside the building debris
    increased, consisting of bricks, glass and old films. During the
    time that the Littlewoods' contractors were working inside the
    main building one of the contractors' employees saw lengths of old
    cinema film lying in Macpherson's Close and noticed signs of
    someone having attempted to set fire to them. The type of film
    used in the cinema was non-inflammable and no fire had occurred.
    About the end of June Mr. Scott, who was the beadle of St. Paul's
    Church and of another church in the vicinity, saw signs of
    someone having tried to light a fire inside the building. His
    attention had been attracted because some children had run out of

    - 5 -

    the building as he approached. When he went inside he found that
    the carpet, where oil had been spilled on it, was burning. He put
    it out very easily by stamping on it and told Mr. Kerr, the session
    clerk of St. Paul's, about it. Neither Mr. Scott nor anyone else
    informed the police or Littlewoods about any of these matters.
    As the Lord Ordinary put it:

    "Nevertheless, in spite of these obvious signs of the building
    having been violated by unauthorised persons, no one saw fit
    to report the matter to the police or to attempt to bring it
    to the attention of the defenders or their representatives."

    A notice at the front of the cinema contained the necessary
    particulars of Littlewoods.

    On 5 July 1976 about 6.30 p.m. a large ceramic sink from a
    toilet on the top floor of the main building of the cinema landed
    on the roof of the billiard saloon in Cafe Maloco. It was thrown
    from a window on the west side of the cinema by boys of 13 or
    14 years of age. The police were called and detained two boys.

    Between 8.00 and 9.00 p.m. on the same day a passer-by
    noticed three teenagers come out of Macpherson's Close and soon
    after she saw smoke coming from the close. The police and the
    fire brigade were called but the fire which started in the south-
    west corner of the balcony soon engulfed the whole building. The
    efforts of the fire brigade were impeded by inability to get a
    supply of water from the fire hoses.

    The Lord Ordinary concluded, and there was no challenge
    the correctness of his conclusion, that the fire which started on 5
    July 1976 was deliberately started by children or teenagers and
    that the teenagers that the passer-by saw emerging from
    Macpherson's Close shortly before the smoke started to come out
    were probably responsible. Apart from the contractors employed
    by Littlewoods, to whom I have referred, the only person employed
    by Littlewoods who gave evidence was a member of the
    architectural department who was responsible for the design and
    supervision of the construction of buildings for the company. He
    visited the cinema about the middle of June and according to his
    evidence it was secure at that time.

    The claims are based on the allegation that Littlewoods, as
    owners and occupiers of the Regal cinema, had a duty to take
    reasonable care for the safety of premises adjoining; that they
    knew or ought to have known that a disused cinema would be a
    ready target for vandals; and that they knew or ought to have
    known that their cinema was, in fact, the subject of extensive
    vandalism and that if they did not take steps to prevent the entry
    of vandals they would cause damage not only to their own
    property, whether by fire or otherwise, but further such fire might
    spread and cause damage to adjoining properties. In these
    circumstances, it was claimed that Littlewoods had a duty to take
    reasonable care to keep and maintain the premises lockfast, to
    cause frequent and regular inspection to be made and to lock and
    board up any doors and windows found to be open or smashed and
    to employ a caretaker to watch over the premises and to prevent
    the entry of vandals. In the course of the hearing before your
    Lordships counsel for the appellants accepted that, in the light of

    - 6 -

    the evidence, the only precaution that was likely to be effective
    in preventing the entry of vandals was to arrange for a 24-hour
    watch to be maintained on the premises. Littlewoods, while
    accepting that as owners and occupiers of the premises they had a
    duty to take reasonable care for the safety of premises adjoining,
    strenuously denied that they owed the duties on which these claims
    are founded.

    The Lord Ordinary, after examining the authorities,
    concluded that whether such duties were owed by Littlewoods or
    not depended on the answer to the question

    "bearing in mind that [Littlewoods] had no control over the
    children and teenagers, was it reasonably foreseeable by
    [Littlewoods] that, by failing to keep the cinema lockfast
    and to inspect it regularly during the last half of June and
    the first few days of July 1976, children and young persons
    would not only enter it, but start a fire?"

    He considered that it was appropriate that he should treat this as
    a jury question and try to answer it as a jury would. He says:

    "In the absence of any evidence about the lighting of fires,
    it would have been difficult to say that it was 'very likely'
    that children and young persons breaking into these premises
    would start a fire, but in the present instance there is
    evidence that on two occasions shortly before 5 July 1976
    witnesses saw signs of someone having tried to start a fire.
    ... I accept that there is a very narrow dividing line in
    the circumstances of this case between bare foreseeability
    and reasonable foreseeability, but having applied my mind to
    that problem I have reached the conclusion that the lighting
    of a fire in the premises by children or teenagers was in
    the circumstances reasonably foreseeable."

    This conclusion he reached with some hesitation.

    Before the First Division it was accepted by the appellants
    that on the evidence, Littlewoods had no knowledge of the
    attempts to start fires to which the Lord Ordinary referred in the
    passage I have quoted and that, accordingly, in considering whether
    Littlewoods were bound reasonably to foresee that as a
    consequence of their inaction a fire would be started in their
    building and not only engulf it but cause damage to buildings
    nearby, these required to be left out of account unless it could be
    said that they had a duty to know of them. If they had not such
    a duty the Lord Ordinary's decision on this crucial matter was
    open for review by the judges of the First Division. The judges of
    the First Division unanimously concluded that the question was at
    large for their consideration and that in the circumstances it had
    not been shown that it was reasonably to be foreseen by
    Littlewoods that if they took no steps to discourage widespread
    use of the cinema by youngsters, including vandals, one or more of
    them, or some other intruder, would be likely deliberately to set
    fire to the building or deliberately to set such a fire in such a
    place as would be likely to engulf the building.

    Mr. MacLean for the appellants in his very persuasive
    submissions to your Lordships suggested that this crucial question

    - 7 -

    should be approached in stages. First he submitted that by reason
    of the particular features of this building it was reasonably
    foreseeable by Littlewoods that young persons were likely to be
    attracted to the building and would attempt to overcome such
    security as there was and would attempt to gain entry. The
    second submission was that it was reasonably foreseeable that if
    the building was insecure and remained insecure it would be
    entered. Further, it was reasonably foreseeable that a proportion
    of such young persons would be intent on causing damage within
    the building which might have an effect on adjoining property.
    The fourth step in the argument was that it was reasonably
    foreseeable that such damage would include damage by fire which,
    being unpredictable, was likely to take hold of the fabric of the
    building. And the final step in the logical progression was that it
    was reasonably foreseeable that if the fire took hold of the
    building it would engulf the building and, since the building was
    large, the fire would readily spread to adjoining properties.

    In support of these submissions and particularly the
    submission that it was reasonably foreseeable that such damage
    would include damage by fire, Mr. MacLean referred to three
    decisions in which conduct of this kind had come to the notice of
    the courts: Evans v. Glasgow District Council, 1978 S.L.T. 17, in
    which it was alleged that one of the forms vandalism had taken in
    that case was that ignited material had been dropped through
    damaged floors of a flat above the pursuer's premises with the
    consequence that the contents of these premises were destroyed
    almost entirely; Carrick Furniture House Ltd v. Paterson, 1978
    S.L.T. (Notes) 48, in which it was alleged that persons had entered
    and deliberately set fire to the premises in question; and thirdly,
    Thomas Graham & Co. Ltd, v. Church of Scotland General
    Trustees,
    1982 S.L.T. (Sh.Ct.) 26, in which vandals had entered a
    church and set it on fire. Mr. MacLean also referred to the
    Criminal Justice (Scotland) Act 1980, section 78, in which while
    defining the statutory offence of vandalism as committed by "any
    person who, without reasonable excuse, wilfully or recklessly
    destroys or damages any property belonging to another" Parliament
    excepted from that offence what would constitute the offence of
    wilful fire-raising. From that statutory provision, and these
    instances, Mr. MacLean argued that it was right that the court
    should take notice that one of the forms in which persons wilfully
    or recklessly destroy or damage property belonging to others is by
    wilful fire-raising.

    He further referred to Hughes v. Lord Advocate, 1963
    S.C.(H.L.) 31 as demonstrating the unpredictability of children's
    behaviour as a factor to be taken into account in dealing with a
    question such as is raised here.

    Mr. MacLean submitted further, and anticipating what might
    be urged against him, that although the actions that caused the
    fire were those of vandals over whom Littlewoods had no control,
    his case was founded on the need that arose in consequence of the
    likely results of allowing vandals into the building to take
    precautions to keep them out. The test of whether such
    precautions should be taken was, in Mr. MacLean's submission,
    whether it was reasonably foreseeable by Littlewoods that if they
    did not take these precautions there was a substantial risk that
    the neighbouring properties would be damaged. He referred

    - 8 -

    particularly to Dorset Yacht Co. Ltd, v. Home Office [1970] A.C.
    1004 and to the speech of Lord Reid, at p. 1027, where, referring
    to the well known passage in Lord Atkin's speech in Donoghue v.
    Stevenson
    [1932] AC 562, 580, Lord Reid said:

    "[It] should I think be regarded as a statement of principle.
    It is not to be treated as if it were a statutory definition.
    It will require qualification in new circumstances. But I
    think that the time has come when we can and should say
    that it ought to apply unless there is some justification or
    valid explanation for its exclusion."

    Mr. MacLean submitted that it would not be right to regard
    damage caused by persons over whom the defender has no control
    as excluded from this statement of principle. Rather, said Mr.
    MacLean, one should take account of actions of third parties over
    whom the defender has no control in considering the consequences
    of acts or omissions on the defender's part. He referred in
    support of this submission to the later passages in Lord Reid's
    speech where he dealt with this question. As an illustration of
    this approach being taken in Scotland, he referred to Squires v.
    Perth and Kinross District Council,
    1986 SLT 30, in which
    jewellers successfully sued building contractors who were working
    in a flat above their shop for not adequately securing the flat
    against entry by thieves. A thief entered the jewellers' premises
    through the fiat by climbing up a drain pipe at the back of the
    property to which he obtained access by climbing over a building.
    A substantial quantity of jewellery was stolen.

    For Littlewoods Mr. Johnston submitted that on the findings
    of fact in the present case Littlewoods had not established,
    applying the test of reasonable foreseeability, the existence of a
    risk sufficient to have obliged Littlewoods to adopt in advance of
    the catastrophic fire the only one of the prescribed remedies that
    might have avoided that occurrence, namely, having the premises
    watched all the time. He also advanced a broader proposition that
    the policy of the law should deny these claims, firstly because
    they involved an unwarranted invasion of the basic right of a
    person to use his property as he pleased and, secondly, because
    affirming these claims implied potential obligations on those who
    leave property unoccupied for a comparatively short time that
    would be unduly heavy having regard to the purpose intended to be
    served. Or, putting the matter another way, he submitted that
    the law should put the responsibility for securing the safety and
    security of property against vandals on the owner or occupier of
    the property and not on neighbouring owners or occupiers from
    whose property damage by vandals and thieves might be caused.
    In support of the submission that affirming the claims in the
    present case would have the result of placing unduly heavy burdens
    on the owners or occupiers of property, he pointed out that there
    was no evidence that this building was in any way a special fire
    hazard, nor was there evidence that this part of Dunfermline was
    specially subject to vandalism.

    In approaching these rival submissions it has to be borne in
    mind that the damage to the neighbouring properties, upon which
    the claims against Littlewoods are founded, is damage by fire or
    otherwise resulting from vandalism in Littlewoods' premises. A
    duty of care to prevent this damage is the only duty alleged to be

    - 9 -

    incumbent upon Littlewoods relevant to this case. From this it
    follows that unless Littlewoods were bound reasonably to anticipate
    and guard against this danger, they had no duty of care, relevant
    to this case, requiring them to inspect their premises. Unless,
    therefore, Littlewoods, on taking control of these premises without
    any knowledge of the subsequent history of the property after they
    assumed control, ought reasonably to have anticipated that they
    would be set on fire and thus or otherwise create a substantial
    risk of damage to neighbouring properties if they did not take
    precautions, the claims must fail. By approaching the matter in
    five logical steps, Mr. MacLean made it appear easier to reach the
    result for which he contended than it would be if one assumed
    only Littlewoods' proved state of knowledge and asked whether, in
    that state of knowledge, they were to anticipate, as a reasonable
    and probable consequence of their inaction, that a substantial risk
    of fire damage to their neighbours was created. As I have said,
    the Lord Ordinary's answer to the basic question in the case
    depended, and depended critically, on his assumption that
    Littlewoods were to be taken as aware of the evidence relating to
    the attempt to start a fire in the lane with the abandoned film
    and to the smouldering carpet which Mr. Scott extinguished. It is
    plain from the way in which the Lord Ordinary expresses his
    opinion that, had it not been for his reliance upon that evidence
    against Littlewoods, he would not have found against them. There
    was no evidence that Littlewoods knew of these matters. Unless
    they had a duty to inspect there is no basis on which it can be
    alleged that they ought to have known of them. Since the only
    basis on which any relevant duty of care is said to arise is that
    damage to neighbouring properties was to be anticipated unless it
    were exercised, in considering whether such damage should have
    been anticipated one cannot assume that any of the relevant duties
    should have been performed. I conclude that the Lord Ordinary
    was not entitled to assume that Littlewoods should have known of
    these matters. The First Division concluded, as I have said, that
    the matter was at large for their consideration. In my opinion,
    their Lordships of the First Division applied their minds to the
    correct question. In my opinion, the question whether, in all the
    circumstances described in evidence, a reasonable person in the
    position of Littlewoods was bound to anticipate as probable, if he
    took no action to keep these premises lockfast, that, in a
    comparatively short time before the premises were demolished,
    they would be set on fire with consequent risk to the neighbouring
    properties is a matter for the judges of fact to determine. Once
    it has been determined on the correct basis, an appeal court
    should be slow to interfere with the determination. See, for
    example, Lord Thankerton in Muir v. Glasgow Corporation, 1943
    S.C.(H.L.) 3, 8 and Lord Porter in Bolton v. Stone [1951] AC 850,
    860.

    The cases to which Mr. MacLean drew attention in his
    argument, and section 78 of the Act of 1980, illustrate that a
    consequence of this kind, if premises are left unoccupied, is a
    possibility, but the extent to which such an occurrence is probable
    must depend on the circumstances of the particular case. While
    no doubt in this case, as the judges in the courts below have
    found, it was probable that children and young persons might
    attempt to break into the vacated cinema, this by no means
    establishes that it was a probable consequence of its being vacated
    with no steps being taken to maintain it lockfast that it would be

    - 10 -

    set on fire with consequent risk of damage to neighbouring
    properties. A telling point in favour of Littlewoods is that,
    although Littlewoods' particulars were shown on a board
    prominently displayed at the front of the premises, no one made
    any protest to them about the state of the premises, or indicated
    to them any concern that, unless they took some action,
    neighbouring premises were at risk. If, in the light of the
    common knowledge in the neighbourhood, it had been anticipated
    that the cinema might be set on fire, with consequent risk to
    adjoining properties, I should have thought the persons concerned
    with the safety of adjoining properties, who were certainly among
    those acquainted with the situation, would have communicated
    their anxieties to Littlewoods. Neither is there evidence that the
    police were ever informed of the situation with regard to the
    cinema, and this I would take as further confirmation that, in the
    circumstances, no one anticipated any adverse consequences arising
    from it. It is true that Mr. Scott, the beadle, spoke of anxiety
    for the safety of children, and also made some reference, in that
    connection, to the possibility of fire, but any concern he had was
    not apparently sufficiently substantial to prompt him to take any
    action whatever in the way of seeking to have the situation
    remedied by the owners or the police.

    This is sufficient for the disposal of this appeal but in view
    of the general importance of some of the matters raised in the
    parties' submissions it is right that I should add some observations
    on these.

    First, Mr. MacLean urged us to say that the ordinary
    principle to be deduced from Lord Atkin's speech in Donoghue v.
    Stevenson
    [1932] AC 562 should apply to cases where the damage
    in question was caused by human agency. It is plain from the
    authorities that the fact that the damage, upon which a claim is
    founded, was caused by a human agent quite independent of the
    person against whom a claim in negligence is made does not, of
    itself, preclude success of the claim, since breach of duty on the
    part of the person against whom the claim is made may also have
    played a part in causing the damage. In dealing with the
    submission in Dorset Yacht Co. Ltd, v. Home Office [1970] A.C.
    1004 that the claim must fail because there was a general
    principle that no person can be responsible for damage caused by
    the acts of another who is not his servant nor acting on his
    behalf, Lord Reid, having quoted from Haynes v. Harwood 1935 1
    K.B. 146, and from Scott's Trustees v. Moss (1889) 17 R. 32, said,
    at p. 1030:

    "These cases show that, where human action forms one of
    the links between the original wrongdoing of the defendant
    and the loss suffered by the plaintiff, that action must at
    least have been something very likely to happen if it is not
    to be regarded as novus actus interveniens breaking the
    chain of causation. I do not think that a mere foreseeable
    possibility is or should be sufficient, for then the intervening
    human action can more properly be regarded as a new cause
    than as a consequence of the original wrongdoing. But if
    the intervening action was likely to happen I do not think
    that it can matter whether that action was innocent or
    tortious or criminal. Unfortunately, tortious or criminal
    action by a third party is often the 'very kind of thing'

    - 11 -

    which is likely to happen as a result of the wrongful or
    careless act of the defendant. And in the present case, on
    the facts which we must assume at this stage, I think that
    the taking of a boat by the escaping trainees and their
    unskilful navigation leading to damage to another vessel
    were the very kind of thing that these Borstal officers
    ought to have seen to be likely."

    It has to be borne in mind that Lord Reid was demonstrating only
    that the submission with which he was dealing was incorrect. If a
    person can be responsible for damage caused by acts of another
    who is not his servant nor acting on his behalf that sufficed to
    answer the question that Lord Reid had before him in the
    respondent's favour. It was accordingly not critical whether the
    test was foreseeability of that damage as likely or very likely. At
    the stage at which Lord Reid used the phrase "very likely" he was
    giving his view on what the two cases he had cited showed. In
    the first of these, the phrase used (per Greer L.J., is "the very
    kind of thing which is likely to happen, at p. 156,)" and in the
    second, the consequence that was being considered was described
    in the passage quoted from Lord President Inglis, at p. 36, as "the
    natural and almost inevitable consequence" of the defender's action
    which was the foundation of the claim. When Lord Reid turns to
    state his own position, he does so on the basis that the intervening
    action was likely to happen. In Muir v. Glasgow Corporation, 1943
    S.C.(H.L.) 3, the issue was whether the defender's manageress was
    negligent in allowing two members of a picnic party to bring a tea
    urn along a passage in her tea room without taking certain
    precautions. The damage in question, in that case, might
    therefore have arisen from the conduct of the two persons
    carrying the tea urn, who were not employees of the defenders nor
    in any way accountable to them. The test of liability set out by
    Lord Macmillan in Bourhill v. Young [1943] AC 92, 104, namely:

    "The duty to take care is the duty to avoid doing or
    omitting to do anything the doing or omitting to do which
    may have as its reasonable and probable consequence injury
    to others, and the duty is owed to those to whom injury
    may reasonably and probably be anticipated if the duty is
    not observed" (underlining mine),

    was expressly used by Lord Thankerton and Lord Macmillan. Lord
    Wright said, at p. 16:

    "As to negligence, the two men [who were carrying the urn]
    were not their [i.e. the defenders'] servants. They were not
    responsible for their acts. That the men should be negligent
    in so simple an operation was not likely to happen. It was
    a mere possibility, not a reasonable probability. The men,
    if negligent, were, no doubt, responsible for their own
    negligence, but from the standpoint of the appellants the
    risk of negligence was a mere unlikely accident which no
    responsible person in [the manageress's] position could
    naturally be expected to foresee."

    Lord Romer expressed it only slightly differently when he said, at
    p. 19:

    - 12 -

    "In my opinion, the appellants can only be fixed with
    liability if it can be shown that there materialised a risk
    that ought to have been within the appellants' reasonable
    contemplation."

    Lord Clauson said, at p. 19:

    "The crucial question in this matter appears to me to be
    whether [the manageress] ought as a reasonable woman to
    have had in contemplation that, unless some further
    precautions were taken, such an unfortunate occurrence as
    that which in fact took place might well be expected."

    There is no hint that any special qualification fell to be introduced
    into the test in consequence of the urn being carried by two
    persons not in the employment of the defenders and for whom
    they would have no vicarious responsibility.

    It is true, as has been pointed out by Oliver L.J., in Lamb
    v. Camden London Borough Council
    [1981] QB 625, 642, that
    human conduct is particularly unpredictable and that every society
    will have a sprinkling of people who behave most abnormally. The
    result of this consideration, in my opinion, is that where the only
    possible source of the type of damage or injury which is in
    question is agency of a human being for whom the person against
    whom the claim is made has no responsibility, it may not be easy
    to find that as a reasonable person he was bound to anticipate
    that type of damage as a consequence of his act or omission. The
    more unpredictable the conduct in question, the less easy to affirm
    that any particular result from it is probable and in many
    circumstances the only way in which a judge could properly be
    persuaded to come to the conclusion that the result was not only
    possible but reasonably foreseeable as probable would be to
    convince him that, in the circumstances, it was highly likely. In
    this type of case a finding that the reasonable man should have
    anticipated the consequence of human action as just probable may
    not be a very frequent option. Unless the judge can be satisfied
    that the result of the human action is highly probable or very
    likely he may have to conclude that all that the reasonable man
    could say was that it was a mere possibility. Unless the needle
    that measures the probability of a particular result flowing from
    the conduct of a human agent is near the top of the scale it may
    be hard to conclude that it has risen sufficiently from the bottom,
    to create the duty reasonably to foresee it.

    In summary I conclude, in agreement with both counsel, that
    what the reasonable man is bound to foresee in a case involving
    injury or damage by independent human agency, just as in cases
    where such agency plays no part, is the probable consequences of
    his own act or omission, but that, in such a case, a clear basis
    will be required on which to assert that the injury or damage is
    more than a mere possibility. To illustrate, it is not necessary to
    go further than the decision of this House in Dorset Yacht Co.
    Ltd, v. Home Office
    where I consider that all the members of the
    majority found such a possible basis in the facts that the
    respondent's yacht was situated very close to the island on which
    the Borstal boys escaped from their custodians, that the only
    effective means of avoiding recapture was to escape by the use of
    some nearby vessel, and that the only means of providing

    - 13 -

    themselves with the means to continue their journey was likely to
    be theft from such nearby vessels. These considerations so limited
    the options open to the escaping boys that it became highly
    probable that the boys would use, damage or steal from one or
    more of the vessels moored near the island.

    The matter is further illustrated by Thomas Graham & Co.
    Ltd, v. Church of Scotland General Trustees, 1982 S.L.T. (Sh.Ct.)
    26, in which Sheriff Macvicar Q.C. found that the area in which
    the defender's church lay was subject to vandalism on a large
    scale, that on an inspection of the church in which representatives
    of the owners of the church took part shortly before the final fire
    evidence existed of small fires having already been lit in its
    interior and that, on that inspection, the official reporting to the
    local authority concerned with public safety had reported that the
    building should be demolished since it constituted a serious fire
    hazard. Sheriff Macvicar concluded that by not taking the very
    obvious and inexpensive precaution of securing the side door of the
    church by which apparently access had been taken the defenders
    had failed in their duty to take reasonable care for the safety of
    their neighbour's property. This decision appears to me to be in
    accordance with the decision of your Lordship's House in Sedleigh-
    Denfield v. O'Callaghan [1940] AC 880, establishing the occupier's
    liability with regard to a hazard created on his land by a
    trespasser, of which he has knowledge, when he fails to take
    reasonable steps to remove it. On Sheriff Macvicar's findings, the
    empty church building constituted a serious fire hazard unless it
    were effectively secured against further trespass.

    Before leaving cases relating to fires, I should mention
    Evans v. Glasgow District Council, 1978 S.L.T. 17 and Carrick
    Furniture House Ltd, v. Paterson,
    1978 S.L.T. Notes, already
    referred to as illustrations cited by Mr. MacLean of vandalism
    taking the form of wilful fire-raising. In the first of these, Evans,
    the defenders had demolished premises which adjoined the pursuer's
    premises which were also leased from the defenders, and in doing
    so had damaged the lock securing the pursuer's doors which had
    been replaced with inadequate locks. The pursuer suffered loss as
    a result of (1) theft of goods by the persons who broke the new
    and inadequate locks; (2) fire caused by vandals dropping lighted
    material through gaps left by the defenders in floorboards above
    the pursuer's premises; and (3) water which escaped from the
    defender's premises as a result of vandals interfering with the
    plumbing there. The case is reported at the stage of relevancy
    where the defenders were arguing that the pursuer's allegations,
    even if fully established, would not justify their claim. In these
    circumstances, Lord Wylie said, at p. 19:

    "it seems to me that it would be entirely in accordance
    with principle to hold that in such circumstances there was
    a general duty on owners or occupiers of property,
    particularly property of the tenement type, where they
    chose to leave it vacant for any material length of time, to
    take reasonable care to see that it was proof against the
    kind of vandalism which was calculated to affect adjoining
    property."

    I do not read Lord Wylie as there deciding that such a duty
    in the circumstances necessarily had been incumbent on the

    - 14 -

    defenders. He was simply saying that principle would allow the
    claim and therefore it would not be right to sustain the defenders'
    submission. In my view that amounted only to a decision that
    depending on the facts as they emerged a duty of the scope
    alleged might be incumbent on owners or occupiers of such
    property in some circumstances that fell within the allegations
    made by the pursuer. Carrick Furniture which followed is
    explicable on the same ground. Counsel for Littlewoods founded
    on the decision in Fraser v. Glasgow Corporation, 1972 S.C. 162,
    particularly a dictum of the Lord Justice-Clerk (Grant), at p. 173,
    but the circumstances in which he declined to hold a injury
    foreseeable were so different from those in the present case and
    so special that I find it of no assistance in this case.

    I turn now to consider the cases in the Court of Appeal in
    England founded on by counsel for Littlewoods in support of his
    broad submission. The first of these, Lamb v. Camden London
    Borough Council
    [1981] QB 625, was a decision that a workman
    damaging a water pipe with his pick in such a way that settlement
    was occasioned to the foundations of the plaintiff's house was not
    reasonably bound to foresee as a consequence of that for which he
    and his employers should be liable damage done to the plaintiff's
    house by squatters who obtained access because the house was not
    adequately secured against their entry when it was empty in order
    that repairs might be carried out. Both Lord Denning M.R. and
    Oliver L.J. dealt fully with the speech of Lord Reid in Dorset
    Yacht Co. Ltd, v. Home Office
    [1970] AC 1004, to which I have
    already referred, and concluded that he was propounding "highly
    likely" as the degree of probability required before liability for the
    wrongful act of a third party could be established against a
    defendant. It will be apparent that my understanding of Lord
    Reid's speech, in its context, is somewhat different from theirs.
    While I do not consider that it is correct to base the decision in
    Lamb v. Camden London Borough Council [1981] QB 625 on a
    proposition as a matter of policy that no wrongdoer could ever be
    liable for outrageous or anti-social conduct that had followed his
    wrongdoing and had contributed to the damage resulting therefrom,
    I respectfully and entirely agree with the result to which the
    Court of Appeal came in that case, and particularly with the
    reason for it expressed by Oliver L.J. where he said, at p. 643:

    "I confess that I find it inconceivable that the reasonable
    man wielding his pick in the road in 1973 could be said
    reasonably to foresee that his puncturing of a water main
    would fill the plaintiffs' house with uninvited guests in
    1974."

    The next case referred to was P. Peri (Exporters) Ltd, v.
    Camden London Borough Council
    [1984] QB 342, in which the
    plaintiffs were tenants of the defendants who used the basement
    of the demised premises in accordance with the terms of the lease
    for the storage of garments. The defendants were also the owners
    of the adjoining premises. These premises had a broken lock on
    the front door. Unauthorised persons were often seen on those
    premises and burglaries had also taken place there, but the
    defendants had done nothing about complaints regarding lack of
    security. During a weekend, intruders entered the basement of the
    premises adjoining the plaintiffs' premises, knocked a hole through
    the wall separating that basement from the plaintiffs' basement,

    - 15 -

    and stole some knitwear belonging to the plaintiffs from their
    basement. The plaintiffs brought an action against the defendants
    claiming damages for negligence. The Court of Appeal held that
    the claim failed. Waller and Oliver L.JJ. held that, although it
    was a foreseeable possibility that thieves might gain access
    through the defendants' property to the plaintiffs' property, the
    defendants were not reasonably bound to foresee as the natural
    and probable consequence of their omission to secure their
    premises that persons over whom they had no control would steal
    the plaintiffs' goods. My noble and learned friend, Lord Goff of
    Chieveley, as Robert Goff L.J., gave the third judgment. He
    quoted, at p. 359, from Dixon J. in Smith v. Leurs (1945) 70
    C.L.R. 256, 262, a passage which was cited with approval in
    Dorset Yacht Co. Ltd, v. Home Office [1970] AC 1004. The full
    passage, cited in Dorset, is (pp. 261-262):

    "But, apart from vicarious responsibility, one man may be
    responsible to another for the harm done to the latter by a
    third person; he may be responsible on the ground that the
    act of the third person could not have taken place but for
    his own fault or breach of duty. There is more than one
    description of duty the breach of which may produce this
    consequence. For instance, it may be a duty of care in
    reference to things involving special danger. It may even
    be a duty of care with reference to the control of actions
    or conduct of the third person. It is, however, exceptional
    to find in the law a duty to control another's actions to
    prevent harm to strangers. The general rule is that one
    man is under no duty of controlling another man to prevent
    his doing damage to a third. There are, however, special
    relations which are the source of a duty of this nature."

    Robert Goff L.J. went on, at pp. 359-360:

    "It is of course true that in the present case the plaintiffs
    do not allege that the defendants should have controlled the
    thieves who broke into their storeroom. But they do allege
    that the defendants should have exercised reasonable care to
    prevent them gaining access through their own premises; and
    in my judgment the statement of principle by Dixon J. is
    equally apposite in such a case. I know of no case where it
    has been held, in the absence of a special relationship, that
    the defendant was liable in negligence for having failed to
    prevent a third party from wrongfully causing damage to the
    plaintiff."

    Earlier he had made reference to Stansbie v. Troman [1948] 2 K.B.
    48, in which a decorator who had contracted to carry out work in
    the plaintiff's home went out for a time when no one else was in
    the house, leaving the door unsecured. In consequence, a thief
    entered and removed some of the plaintiff's property from the
    house and the plaintiff succeeded in recovering damages against
    the decorator. There was in that case no special relationship
    between the decorator and the thief although there was a contract
    between the decorator and the plaintiff. I should have thought
    that on the same facts, a guest of the plaintiff's who had left
    property in the house, if it had been stolen, might also have
    succeeded in recovering damages in respect of that theft from the
    decorator. That case proceeded on the basis that the decorator

    - 16 -

    was liable because it was "as a direct result of his negligence that
    the thief entered by the front door" (per Tucker L.J., at p. 52) I
    think it could be said that the purpose of the security
    arrangements at the door of the house was to prevent unlawful
    intrusion, that a reasonable man, in the decorator's position, would
    have secured the door, and that, on analysis, his reason for doing
    so would be to prevent the consequence which he ought reasonably
    to foresee of unauthorised intrusion and theft from the house
    whose door it was. On the other hand, if the thief, instead of
    confining his attention to the house whose door it was, bored a
    hole through the wall into the house next door, and stole items
    from the adjoining proprietor, assuming the first house was in a
    terrace or semi-detached, I consider that the decorator would not
    be liable in respect of the adjoining proprietor's loss, in the
    absence of circumstances from which this was shown to be
    reasonably foreseeable.

    If the proprietor of the first house returned in time to find
    the thief boring a hole in the wall with the intention of effecting
    entry to the adjoining house, in the light of the decision in
    Sedleigh-Denfield v. O'Callaghan [1940] A.C. 80 I consider the first
    proprietor would be under a duty of care to the second proprietor
    to take what reasonable steps were open to him to cause the
    boring to cease. In some sense a thief who goes through one
    proprietor's property in order to reach the adjoining property of
    his neighbour creates a special relationship between himself and
    the first proprietor as a user of the first proprietor's land. In my
    opinion, therefore, the reason that in the circumstances of P. Perl
    (Exporters) Ltd, v. Camden London Borough Council
    [1984] Q.B.
    342 no duty was owed by the defendants to Perl was that the
    defendants were not bound as reasonable occupiers to foresee that,
    if they took no steps to improve the security of their property, a
    probable consequence of that was that thieves would first
    unlawfully enter their property and then, by making an opening in
    the dividing wall or otherwise, use the defendant's property to
    make an entry into the property of Perl for the purpose of
    stealing goods belonging to Perl. Although a duty to prevent a
    person from unlawfully entering my property may, in a sense, be
    described as a duty to control that person, I would not consider
    this a very natural use of the word "control." Control signifies, to
    my mind, a more extended relationship than would be involved in
    simply keeping another off my property. If this be right, the duty
    alleged by Perl to be incumbent on Camden was a duty falling
    under the earlier part of Dixon J.'s dictum, as giving rise to
    responsibility on the ground that the act of the thief could not
    have taken place but for the fault or breach of duty of the
    defendant but not to a duty of care with reference to the control
    of actions or conduct of the thief. Like Oliver L.J. in Perl, at p.
    357G, I would regard the mode of entry in question in that case
    to the plaintiffs' premises as a foreseeable possibility and no more,
    and in my view, that reasoning amply supports the decision of the
    Court of Appeal in Perl.

    The somewhat analogous case of Squires v. Perth and
    Kinross District Council.
    1986 SLT 30, to which I have already
    referred, in the Second Division of the Court of Session, so far as
    it was based on the fact that the defending contractors, having by
    their work seriously reduced the security of the flat above the
    shop premises, failed to take adequate steps temporarily to secure

    - 17 -

    it when they were absent, was decided by an application of what,
    in my opinion, was the correct test. Like Lord Dunpark, I have
    the greatest difficulty in seeing, in view of the mode of entry
    which the thief actually used, that the alleged breach of duty was
    in any way related to the particular manner in which the theft
    occurred.

    ,

    The decision in Perl was applied in King v. Liverpool City
    Council
    [1986] 1 W.L.R. 890, in which the question of damage by
    vandals to property again arose. The plaintiff was the tenant of a
    flat in a block of flats owned by the defendant. When the flat
    immediately above the plaintiff's flat became vacant, she
    requested the defendant to board it up so as to secure it against
    intruders. The defendant took no effective steps to secure the
    upper flat and on three occasions vandals broke in and damaged
    water pipes in that flat allowing water to escape down into the
    plaintiff's flat where it caused damage. The plaintiff claimed
    damages against the defendant, alleging that it owed her a duty of
    care so to secure the vacant flat as to prevent vandals gaining
    access to it. The trial judge found that it would not have been
    possible to take effective steps in the situation disclosed in the
    evidence which could defeat the activities of vandals and dismissed
    the plaintiff's claim. The plaintiff appealed.

    The Court of Appeal (Purchas and Nicholls L.JJ. and
    Caulfield J.) dismissed the appeal. After referring to a number of
    authorities, Purchas L.J. said, at p. 901:

    "The judge's finding is, in my judgment, determinative of
    this appeal. Summarizing his judgment, he said:

    'Regrettably ... I find that it is not possible for effective
    steps to be taken in a situation like this which could defeat
    the activities of vandals.' Whether this finding, together
    with the established circumstances of the council, should
    operate to restrict the ambit of the duty to take any
    positive steps to secure the property, or duty arising in
    relation to an omission to take such steps; or whether it
    operates to break the chain of causation, may, as Robert
    Goff L.J. suggested in [the] passage which I have just cited
    from Paterson Zochonis Ltd, v. Merfarken Packaging Ltd.
    [1983] F.S.R. 273, 299, not be essentially material.
    Personally I prefer the former approach and would limit the
    area of the duty itself in the circumstances prevailing in
    this case. In either event, in my judgment the judge was
    right to hold that the council held no duty to the plaintiff
    in respect of the acts of the vandals in this case and
    accordingly I would dismiss this appeal."

    Nicholls L.J. agreed but added, at pp. 901-902, in relation to an
    argument for the plaintiff that King was to be distinguished from
    P. Perl (Exporters) Ltd, v. Camden London Borough Council [1984]
    Q.B. 342:

    "I am unable to accept that any material ground of
    distinction exists between the two cases. In P. Perl
    (Exporters) Ltd, v. Camden London Borough Council
    [1984]
    Q.B. 342, as in the instant case, the plaintiff sought to
    make the defendant occupier liable in negligence for the
    wrongdoing of a third party. In his judgment Robert Goff

    - 18 -

    L.J. set out, at p. 359 . . . some examples of circumstances
    where there may be liability for a third party's wrongdoing,
    and concluded that those instances were very different from
    that case where, as in the present case, the allegation was
    that the defendant failed to exercise reasonable care to
    prevent a third party from causing damage to the plaintiff.
    In his preface to that passage Robert Goff L.J. assumed
    that there might well be cases where the occupier could
    reasonably foresee that thieves might use the unprotected
    property as a means of access to neighbouring property.
    But he, in common with the other members of the court,
    rejected the existence of the broad duty of care contended
    for by the plaintiff's counsel, and his conclusion was to the
    effect that in the absence of a special relationship, there
    was no duty to prevent thieves from so using one's property.
    I cannot see any distinction in principle between a case
    where the damage arises from the third party using the
    defendant's property as a means of obtaining unauthorised
    access to the plaintiff's property and there committing
    theft, and one where the damage arises from the third party
    so conducting himself on the defendant's property as to
    damage the plaintiff's property by causing water to escape
    from the former property to the latter. Nor can I see that
    it is material that the defendant had a responsibility to take
    reasonable steps to prevent the escape from its property of
    water in an ordinary domestic water system. I do not
    consider that there is a greater responsibility on the
    defendant because the third party caused damage by
    creating an escape of water than if the damage had been
    caused by the third party lighting a fire on the defendant's
    property or, if the defendant's property had been on the top
    floor of the building, by the third party stripping lead from
    the roof and thereby permitting rain to enter and eventually
    to reach and damage the plaintiff's property."

    Caulfield J. agreed with both judgments.

    The conclusion of fact that no effective precautions on the
    lines suggested by the plaintiff could be taken by the defendant to
    prevent the damage suffered by the plaintiff was amply sufficient
    to justify the conclusion reached by the Court of Appeal in King
    v. Liverpool City Council
    [1986] 1 W.L.R. 890. Leave to appeal to
    this House from the decision was refused to the plaintiff.

    However, while it may well be true that no distinction of
    legal principle falls to be made between the various cases referred
    to by Nicholls L.J., I consider that there may be important
    differences in the facts which could justify different results.

    Cases of theft where the thief uses a neighbour's premises
    to gain access to the premises of the owner of the stolen goods
    are, in my opinion, in an important respect different from cases of
    fire such as that with which your Lordships are concerned in the
    present appeal. In the case of fire, a hazard is created on the
    first occupier's premises and it is that hazard which operating
    from the first occupier's premises creates danger to the
    neighbouring properties. As I have said, even although that hazard
    is created by the act of a trespasser on the first premises the
    occupier of these premises, once he knows of the physical facts

    - 19 -

    giving rise to the hazard, has a duty to take reasonable care to
    prevent the hazard causing damage to neighbouring properties. In
    the ordinary case of theft where the thief uses the first
    proprietor's property only as an access to the property of the
    person from whom the stolen property is taken there is no similar
    hazard on the first proprietor's land which causes the damage to
    the neighbouring property. Success of the theft depends very
    much on its mode and occasion being unexpected. The only danger
    consists in the thief or thieves who, having passed from trespassing
    on the first proprietor's property, go on to trespass on his
    neighbour's. There is also a sense in which neighbouring
    proprietors can, independently, take action to protect themselves
    against theft in a way that is not possible with fire. Once the
    fire had taken hold on Littlewoods' building, St. Paul's proprietors
    could not be expected to take effective steps to prevent sparks
    being showered over on their property. On the other hand, in the
    jewellery case (Squires v. Perth and Kinross District Council, 1986
    S.L.T. 30) there was no reason why the pursuers if they had
    anticipated the risk of theft as sufficiently serious should not have
    had a burglar alarm which would prove effective to warn of
    burglars whatever their mode of entry although this would not, of
    itself, prevent their entry.

    Where the question is whether or not the duty to take a
    particular precaution is incumbent on a defendant, the probability
    of the risk emerging is not the only consideration, as was pointed
    out by Lord Reid giving the opinion of the board in Overseas
    Tankship (U.K.) Ltd, v. Miller Steamship Co. Pty.
    [1967] 1 A.C.
    617 in reference to Bolton v. Stone [1951] AC 850, said, at pp.
    642-643:

    "The House of Lords held that the risk was so small that in
    the circumstances a reasonable man would have been
    justified in disregarding it and taking no steps to eliminate
    it. But it does not follow that, no matter what the
    circumstances may be, it is justifiable to neglect a risk of
    such a small magnitude. A reasonable man would only
    neglect such a risk if he had some valid reason for doing
    so, e.g., that it would involve considerable expense to
    eliminate the risk. He would weigh the risk against the
    difficulty of eliminating it. If the activity which caused the
    injury to Miss Stone had been an unlawful activity, there
    can be little doubt that but that Bolton v. Stone would have
    been decided differently. In their Lordships' judgment
    Bolton v. Stone did not alter the general principle that a
    person must be regarded as negligent if he does not take
    steps to eliminate a risk which he knows or ought to know
    is a real risk and not a mere possibility which would never
    influence the mind of a reasonable man. What that decision
    did was to recognise and give effect to the qualification
    that it is justifiable not to take steps to eliminate a real
    risk if it is small and if the circumstances are such that a
    reasonable man, careful of the safety of his neighbour,
    would think it right to neglect it".

    In my opinion this observation demonstrates that when the word
    "probable" is used in this context in the authorities, it is used as
    indicating a real risk as distinct from a mere possibility of danger.
    It is not used in the sense that the consequence must be more

    - 20 -

    probable than not to happen, before it can be reasonably
    foreseeable. And again, in Goldman v. Hargrave [1967] 1 A.C.
    645, Lord Wilberforce giving the opinion of the board, referring to
    a number of textbooks as well as an article by Dr. A. L.
    Goodhart, says, at pp. 662-663:

    "All of these endorse the development which their Lordships
    find in the decisions, towards a measured duty of care by
    occupiers to remove or reduce hazards to their neighbours.
    So far it has been possible to consider the existence of a
    duty, in general terms. But the matter cannot be left there
    without some definition of the scope of his duty. How far
    does it go? What is the standard of the effort required?
    What is the position as regards expenditure? It is not
    enough to say merely that these must be 'reasonable,' since
    what is reasonable to one man may be very unreasonable,
    and indeed ruinous, to another: the law must take account
    of the fact that the occupier on whom the duty is cast has,
    ex hypothesi, had this hazard thrust upon him through no
    seeking or fault of his own. His interest, and his resources,
    whether physical or material, may be of a very modest
    character either in relation to the magnitude of the hazard,
    or as compared with those of his threatened neighbour. A
    rule which required of him in such unsought circumstances
    in his neighbour's interest a physical effort of which he is
    not capable, or an excessive expenditure of money, would be
    unenforceable or unjust. One may say in general terms that
    the existence of a duty must be based upon knowledge of
    the hazard, ability to foresee the consequences of not
    checking or removing it, and the ability to abate it. And in
    many cases, as, for example, in Scrutton L.J.'s hypothetical
    case of stamping out a fire, or the present case, where the
    hazard could have been removed with little effort and no
    expenditure, no problem arises. But other cases may not be
    so simple. In such situations the standard ought to be to
    require of the occupier what it is reasonable to expect of
    him in his individual circumstances. Thus, less must be
    expected of the infirm than of the able-bodied: the owner
    of a small property where a hazard arises which threatens a
    neighbour with substantial interests should not have to do so
    much as one with larger interests of his own at stake and
    greater resources to protect them: if the small owner does
    what he can and promptly calls on his neighbour to provide
    additional resources, he may be held to have done his duty:
    he should not be liable unless it is clearly proved that he
    could, and reasonably in his individual circumstances should,
    have done more."

    My Lords, I think it is well to remember as Lord Radcliffe
    pointed out in Bolton v. Stone [1951] AC 850, 868-869:

    "a breach of duty has taken place if they show the
    appellants guilty of a failure to take reasonable care to
    prevent the accident. One may phrase it as 'reasonable
    care' or 'ordinary care' or 'proper care' - all these phrases
    are to be found in decisions of authority - but the fact
    remains that, unless there has been something which a
    reasonable man would blame as falling beneath the standard
    of conduct that he would set for himself and require of his
    neighbour, there has been no breach of legal duty."

    - 21 -

    This is the fundamental principle and in my opinion various
    factors will be taken into account by the reasonable man in
    considering cases involving fire on the one hand and theft on the
    other but since this is the principle the precise weight to be given
    to these factors in any particular case will depend upon the
    circumstances and rigid distinctions cannot be made between one
    type of hazard and another. I consider that much must depend on
    what the evidence shows is done by ordinary people in like
    circumstances to those in which the claim of breach of duty

    arises.

    In my view, if the test of the standard of the reasonable
    man is applied to the steps an occupier of property must take to
    protect neighbouring properties from the hazard of fire arising on
    his property no further consideration of policy arises that should
    lessen the responsibility of the occupier in a case such as this.

    Mr. Johnston's broad submission does not therefore add
    anything to his narrow submission in the circumstances of this case
    since, in my opinion, no undue burdens are put upon property
    occupiers by the application of the principle of Donoghue v.
    Stevenson
    [1932] A C 562 nor is there any undue interference with
    the freedom of a person to use his property as he pleases.

    In my opinion, these appeals should be refused and the
    interlocutors of the First Division affirmed. The appellants must
    pay the Littlewoods' costs of the appeals.

    LORD GOFF OF CHIEVELEY

    My Lords,

    The Lord President founded his judgment on the proposition
    that the defenders, who were both owners and occupiers of the
    cinema, were under a general duty to take reasonable care for the
    safety of premises in the neighbourhood.

    Now if this proposition is understood as relating to a
    general duty to take reasonable care not to cause damage to
    premises in the neighbourhood (as I believe that the Lord President
    intended it to be understood) then it is unexceptionable. But it
    must not be overlooked that a problem arises when the pursuer is
    seeking to hold the defender responsible for having failed to
    prevent a third party from causing damage to the pursuer or his
    property by the third party's own deliberate wrongdoing. In such a
    case, it is not possible to invoke a general duty of care; for it is
    well recognised that there is no general duty of care to prevent
    third parties from causing such damage. The point is expressed
    very clearly in Hart and Honour, Causation in the Law, 2nd ed.
    (19 ), when the authors state, at pp. 196-197:

    "The law might acknowledge a general principle that,
    whenever the harmful conduct of another is reasonably
    foreseeable, it is our duty to take precautions against it . .
    . . But, up to now, no legal system has gone so far as
    this."

    - 22 -

    The same point is made in Fleming, The Law of Torts, 6th ed.
    (1983), where it is said, at p. 200:

    "there is certainly no general duty to protect others against
    theft or loss."

    I wish to add that no such general duty exists even between those
    who are neighbours in the sense of being occupiers of adjoining
    premises. There is no general duty upon a householder that he
    should act as a watchdog, or that his house should act as a
    bastion, to protect his neighbour's house.

    Why does the law not recognise a general duty of care to
    prevent others from suffering loss or damage caused by the
    deliberate wrongdoing of third parties? The fundamental reason is
    that the common law does not impose liability for what are called
    pure omissions. If authority is needed for this proposition, it is to
    be found in the speech of Lord Diplock in Dorset Yacht Co. Ltd.
    v. Home Office [1970] AC 1004, where he said, at p. 1060:

    "The very parable of the good Samaritan (Luke 10, v. 30)
    which was evoked by Lord Atkin in Donoghue v. Stevenson
    [1932] AC 562 illustrates, in the conduct of the priest and
    of the Levite who passed by on the other side, an omission
    which was likely to have as its reasonable and probable
    consequence damage to the health of the victim of the
    thieves, but for which the priest and Levite would have
    incurred no civil liability in English law."

    Lord Diplock then proceeded to give examples which show that,
    carried to extremes, this proposition may be repugnant to modern
    thinking. It may therefore require one day to be reconsidered,
    especially as it is said to provoke an "invidious comparison with
    affirmative duties of good-neighbourliness in most countries outside
    the common law orbit" (see Fleming, The Law of Torts, 6th ed., p.
    138). But it is of interest to observe that, even if we do follow
    the example of those countries, in all probability we will, like
    them, impose strict limits upon any such affirmative duty as may
    be recognised. In one recent French decision, the condition was
    imposed that the danger to the claimant must be "grave,
    imminent, constant . . . necessitate one intervention immediate,"
    and that such an intervention must not involve any "risqué pour le
    prevent our pour un tiers": see Lawson and Markesan’s, Tortious
    liability for unintentional harm in the Common law and the Civil
    law,
    (1982) vol. I, pp. 74-75. The latter requirement is consistent
    with our own law, which likewise imposes limits upon steps
    required to be taken by a person who is under an affirmative duty
    to prevent harm being caused by a source of danger which has
    arisen without his fault (see Goldman v. Margrave [1967] 1 A.C.
    645), a point to which I shall return later. But the former
    requirement indicates that any affirmative duty to prevent
    deliberate wrongdoing by third parties, if recognised in English law,
    is likely to be strictly limited. I mention this because I think it
    important that we should realise that problems like that in the
    present case are unlikely to be solved by a simple abandonment of
    the common law's present strict approach to liability for pure
    omissions.

    - 23 -

    Another statement of principle, which has been much
    quoted, is the observation of Lord Sumner in Weld-Blundell v.
    Stephens
    [1920] A.C. 956, when he said, at p. 986:

    "In general . . . even though A is in fault, he is not
    responsible for injury to C which B, a stranger to him,
    deliberately chooses to do."

    This dictum may be read as expressing the general idea that the
    voluntary act of another, independent of the defender's fault, is
    regarded as a novus actus interveniens which, to use the old
    metaphor, "breaks the chain of causation." But it also expresses a
    general perception that we ought not to be held responsible in law
    for the deliberate wrongdoing of others. Of course, if a duty of
    care is imposed to guard against deliberate wrongdoing by others,
    it can hardly be said that the harmful effects of such wrongdoing
    are not caused by such breach of duty. We are therefore thrown
    back to the duty of care. But one thing is clear, and that is that
    liability in negligence for harm caused by the deliberate
    wrongdoing of others cannot be founded simply upon foreseeability
    that the pursuer will suffer loss or damage by reason of such
    wrongdoing. There is no such general principle. We have
    therefore to identify the circumstances in which such liability may
    be imposed.

    That there are special circumstances in which a defender
    may be held responsible in law for injuries suffered by the pursuer
    through a third party's deliberate wrongdoing is not in doubt. For
    example, a duty of care may arise from a relationship between the
    parties, which gives rise to an imposition or assumption of
    responsibility upon or by the defender, as in Stansbie v. Troman
    [1948] 2 K.B. 48, where such responsibility was held to arise from
    a contract. In that case a decorator, left alone on the premises
    by the householder's wife, was held liable when he went out
    leaving the door on the latch, and a thief entered the house and
    stole property. Such responsibility might well be held to exist in
    other cases where there is no contract, as for example where a
    person left alone in a house has entered as a licensee of the
    occupier. Again, the defender may be vicariously liable for the
    third party's act; or he may be held liable as an occupier to a
    visitor on his land. Again, as appears from the dictum of Dixon J
    in Smith v. Leurs, 70 C.L.R. 256, 262, a duty may arise from a
    special relationship between the defender and the third party, by
    virtue of which the defender is responsible for controlling the third
    party: see, for example, Dorset Yacht Co. Ltd, v. Home Office
    [1970] AC 1004. More pertinently, in a case between adjoining
    occupiers of land, there may be liability in nuisance if one
    occupier causes or permits persons to gather on his land, and they
    impair his neighbour's enjoyment of his land. Indeed, even if such
    persons come on to his land as trespassers, the occupier may, if
    they constitute a nuisance, be under an affirmative duty to abate
    the nuisance. As I pointed out in P. Perl (Exporters) Ltd, v.
    Camden London Borough Council
    [1984] QB 342, 359, there may
    well be other cases.

    These are all special cases. But there is a more general
    circumstance in which a defender may be held liable in negligence
    to the pursuer, although the immediate cause of the damage
    suffered by the pursuer is the deliberate wrongdoing of another.

    - 24 -

    This may occur where the defender negligently causes or permits
    to be created a source of danger, and it is reasonably foreseeable
    that third parties may interfere with it and, sparking off the
    danger, thereby cause damage to persons in the position of the
    pursuer. The classic example of such a case is, perhaps, Haynes
    v. Harwood
    [1935] 1 K.B. 146, where the defendant's carter left a
    horse-drawn van unattended in a crowded street, and the horses
    bolted when a boy threw a stone at them. A police officer who
    suffered injury in stopping the horses before they injured a woman
    and children was held to be entitled to recover damages from the
    defendant. There, of course, the defendant's servant had created
    a source of danger by leaving his horses unattended in a busy
    street. Many different things might have caused them to bolt - a
    sudden noise or movement, for example, or, as happened, the
    deliberate action of a mischievous boy. But all such events were
    examples of the very sort of thing which the defendant's servant
    ought reasonably to have foreseen and to have guarded against by
    taking appropriate precautions. In such a case, Lord Sumner's
    dictum (Weld-Blundell v. Stephens [1972] A.C. 956, 986) can have
    no application to exclude liability.

    Haynes v. Harwood was a case concerned with the creation
    of a source of danger in a public place. We are concerned in the
    present case with an allegation that the defenders should be held
    liable for the consequences of deliberate wrongdoing by others who
    were trespassers on the defenders' property. In such a case it
    may be said that the defenders are entitled to use their property
    as their own and so should not be held liable if, for example,
    trespassers interfere with dangerous things on their land. But this
    is, I consider, too sweeping a proposition. It is well established
    that an occupier of land may be liable to a trespasser who has
    suffered injury on his land; though in Herrington v. British
    Railways Board
    [1972] AC 877, in which the nature and scope of
    such liability was reconsidered by your Lordships' House, the
    standard of care so imposed on occupiers was drawn narrowly so
    as to take proper account of the rights of occupiers to enjoy the
    use of their land. It is, in my opinion, consistent with the
    existence of such liability that an occupier who negligently causes
    or permits a source of danger to be created on his land, and can
    reasonably foresee that third parties may trespass on his land and,
    interfering with the source of danger, may spark it off, thereby
    causing damage to the person or property of those in the vicinity,
    should be held liable to such a person for damage so caused to
    him. It is useful to take the example of a fire hazard, not only
    because that is the relevant hazard which is alleged to have
    existed in the present case, but also because of the intrinsically
    dangerous nature of fire hazards as regards neighbouring property.
    Let me give an example of circumstances in which an occupier of
    land might be held liable for damage so caused. Suppose that a
    person is deputed to buy a substantial quantity of fireworks for a
    village fireworks display on Guy Fawkes night. He stores them, as
    usual, in an unlocked garden shed abutting onto a neighbouring
    house. It is well known that he does this. Mischievous boys from
    the village enter as trespassers and, playing with the fireworks,
    cause a serious fire which spreads to and burns down the
    neighbouring house. Liability might well be imposed in such a
    case; for, having regard to the dangerous and tempting nature of
    fireworks, interference by naughty children was the very thing
    which, in the circumstances, the purchaser of the fireworks ought
    to have guarded against.

    - 25 -

    But liability should only be imposed under this principle in
    cases where the defender has negligently caused or permitted the
    creation of a source of danger on his land, and where it is
    foreseeable that third parties may trespass on his land and spark it
    off, thereby damaging the pursuer or his property. Moreover it is
    not to be forgotten that, in ordinary households in this country,
    there are nowadays many things which might be described as
    possible sources of fire if interfered with by third parties, ranging
    from matches and firelighters to electric irons and gas cookers and
    even oil-fired central heating systems. These are commonplaces of
    modern life; and it would be quite wrong if householders were to
    be held liable in negligence for acting in a socially acceptable
    manner. No doubt the question whether liability should be imposed
    on defenders in a case where a source of danger on his land has
    been sparked off by the deliberate wrongdoing of a third party is
    a question to be decided on the facts of each case, and it would,
    I think, be wrong for your Lordships' House to anticipate the
    manner in which the law may develop: but I cannot help thinking
    that cases where liability will be so imposed are likely to be very
    rare.

    There is another basis upon which a defender may be held
    liable for damage to neighbouring property caused by a fire started
    on his (the defender's) property by the deliberate wrongdoing of a
    third party. This arises where he has knowledge or means of
    knowledge that a third party has created or is creating a risk of
    fire, or indeed has started a fire, on his premises, and then fails
    to take such steps as are reasonably open to him (in the limited
    sense explained by Lord Wilberforce in Goldman v. Hargrave [1967]
    1 A.C. 645, 663-664) to prevent any such fire from damaging
    neighbouring property. If, for example, an occupier of property
    has knowledge, or means of knowledge, that intruders are in the
    habit of trespassing upon his property and starting fires there,
    thereby creating a risk that fire may spread to and damage
    neighbouring property, a duty to take reasonable steps to prevent
    such damage may be held to fall upon him. He could, for
    example, take reasonable steps to keep the intruders out. He
    could also inform the police; or he could warn his neighbours and
    invite their assistance. If the defender is a person of substantial
    means, for example a large public company, he might even be
    expected to employ some agency to keep a watch on the premises.
    What is reasonably required would, of course, depend on the
    particular facts of the case. I observe that, in Goldman v.
    Hargrave,
    such liability was held to sound in nuisance; but it is
    difficult to believe that, in this respect, there can be any material
    distinction between liability in nuisance and liability in negligence.

    I turn to the authorities. Your Lordships were referred in
    the course of argument to two Scottish cases concerned with fire
    hazards. The first was Carrick Furniture House Ltd, v. Paterson
    1978 S.L.T. (Notes) 48. " In that case, in allowing proof before
    answer, the Lord Ordinary (Lord Allanbridge) founded upon the
    facts that the building in question, which contained considerable
    quantities of inflammable material, constituted a fire hazard, and
    that the risk of a vandal setting fire to the premises was not too
    remote. The case is only briefly reported; but it provides an
    indication that cases of this kind cannot normally be disposed of
    on a plea to the relevancy, but have to be allowed to go to proof.

    - 26 -

    In the second case, Thomas Graham & Co. Ltd, v. Church of
    Scotland General Trustees,
    1982 S.L.T. (Sh.Ct.) 26, Sheriff
    Macvicar Q.C. held that the defenders, who were occupiers of a
    disused church, were liable to the pursuers whose neighbouring
    property suffered damage by reason of a fire started in the church
    by unknown vandals. He relied (inter alia) on the facts that the
    church was situated in an area of Glasgow which was subject to
    vandalism on a large scale; that, to the knowledge of the
    defenders, on a number of previous occasions vandals had entered
    the church and caused damage there; that the vandals had also lit
    small fires in the church, and that a responsible inspector had
    expressed the opinion that the building was a serious fire hazard;
    that there was no evidence that the defenders, or anyone on their
    behalf, had applied their minds to the question of fire hazard, and
    that there was ample evidence to support the view that, if they
    had, and had taken advice on the matter, they would have been
    told that the building was a serious fire risk; and that, for two
    months before the fire, the building was not lockfast. I incline to
    the opinion that this case can best be classified under the second
    of the two heads of liability to which I have referred, on the basis
    that the defenders had the means of knowledge that a risk of fire
    had been created or was being created by third parties on their
    land, and yet they did nothing to prevent such risk of fire from
    damaging neighbouring property. The leading Commonwealth case
    in which an occupier of land was held liable for damage caused to
    his neighbour's property by a fire which started on his own land
    without his fault (when lightning struck a tall tree), and which he
    negligently failed to prevent from spreading onto his neighbour's
    land, is Goldman v. Hargrave itself. But a case more similar to
    the two Scottish cases to which I have referred is perhaps the
    American case of Torrack v. Corpamerica Inc. (1958) 144 A.2d.
    703, where it was alleged that the defendant's derelict property
    was frequented by children and vagrants and had been condemned
    by the fire marshal as a fire menace, and that thereafter a fire
    was deliberately started by a third person on the property which
    spread to and damaged the plaintiff's neighbouring property; there
    the defendant's motion for summary judgment was denied. In so
    holding, Judge Christie relied on earlier cases to the same effect,
    viz. Prince v. Chehalis Savings & Loan Association (1936) 186
    Wash. 372; 38 P.(2d) 290; 61 P.(2d) 1374, and Arneil v. Schnitzer
    (1944) 173 Or. 179; 144 P.(2d) 707.

    Turning to the facts of the present case, I cannot see that
    the defenders should be held liable under either of these two
    possible heads of liability. First, I do not consider that the empty
    cinema could properly be described as an unusual danger in the
    nature of a fire hazard. As the Lord President pointed out, 1986
    S.L.T. 272,276:

    "There was nothing about the building, so far as we know
    from the evidence, to suggest that it could easily be set
    alight."

    This conclusion was, in my judgment, entirely justified on the
    evidence in the case; and it is, I consider, fatal to any allegation
    that the defenders should be held liable on the ground that they
    negligently caused or permitted the creation of an unusual source
    of danger in the nature of a fire hazard.

    - 27 -

    Nor can I see that the defenders should be held liable for
    having failed to take reasonable steps to abate a fire risk created
    by third parties on their property without their fault. If there
    was any such fire risk, they had no means of knowing that it
    existed. If anybody (for example, the police) considered that there
    was such a risk, they could and should have contacted the
    defenders (a well known public company, whose particulars were
    given on a notice outside the cinema) by telephone to warn them
    of the situation; but they did not do so. But in any event, on the
    evidence, the existence of such a risk was not established. As the
    Lord President observed, at pp. 276-277:

    "It is, in my opinion, significant that no witness who spoke
    about the increasing use of the cinema by intruding children
    and the witnesses included the minister of St. Paul's Church,
    the session clerk and the beadle, and also Mr. Maloco
    reported to the police or the defenders what they had
    observed. If it had crossed their minds that it was likely
    that the children would set fire to the building and put
    neighbouring properties at risk, it is inconceivable that they
    would not have taken immediate steps, by reporting to the
    police and the defenders, to bring the use of the premises
    by children to an end. My experience of life, which I am
    entitled to bring to bear as a juryman would, has not taught
    me that empty buildings, to which vandals gain access, are
    likely to be set on fire by them ..."

    In the course of his argument before your Lordships, Mr.
    MacLean placed reliance upon the decision of the Inner House of
    the Court of Session in Squires v. Perth and Kinross District
    Council,
    1986 SLT 30. That was a case concerned not with
    liability in respect of a fire hazard, but with liability in respect of
    a theft by a burglar who had gained access to the pursuer's
    jeweller's shop through a flat above which was empty because it
    was being renovated by building contractors who were held to be
    in occupation of the flat. It was held that the contractors, as
    occupiers, were liable in negligence to the pursuers for the loss of
    the jewellery stolen from the shop, on the ground that any person
    in occupancy and control of the flat above would have readily
    foreseen the likelihood of what in fact occurred. It appears that
    the fact that the flat above was empty was plainly apparent from,
    in particular, the presence of scaffolding at the front of the
    building; and complaints had been made on a number of occasions
    that the contractors did not keep the flat secure, for example,
    because windows were left open and unglazed to accommodate
    scaffolding. It was a remarkable feature of the case that the
    burglar himself, one Sneddon, gave evidence at the trial; and it
    transpired from his evidence that, although his attention was drawn
    to the possibility of breaking into the jeweller's shop through the
    empty flat by seeing the scaffolding and open windows of the flat
    facing the High Street, he in fact approached the flat from
    behind, climbing over a building of about 12 to 15 feet high
    overall. He found the door into the yard behind the shop and flat
    unsecured, but nevertheless climbed over a wall into the yard and
    then climbed a drainpipe to a balcony, from which he entered the
    flat through a door which was open. Having entered the flat, he
    broke into the jeweller's shop through the floor of the flat and the
    ceiling of the shop. In these circumstances, assuming that the
    defenders were in breach of duty in leaving the flat insecure, I

    - 28 -

    feel, with all respect, serious doubts about the decision on the
    issue of causation, since it is difficult to imagine that an
    experienced and practised housebreaker, as Sneddon was held to be,
    would have been deterred from entering the flat even if the door
    on the balcony had been secured. I am not surprised therefore to
    find that Lord Dunpark shared the same doubts (see at p. 40).
    Furthermore, I find it difficult to understand why the question of
    contributory negligence on the part of the pursuers was not
    considered. The pursuers were just as aware of the risk as the
    defenders were; yet, although (as was found) an alarm system is
    often fitted to the roof of premises such as those of the pursuers,
    and is relatively inexpensive, they did not take this precaution.
    They seem to have assumed that, although it was their shop which
    was likely to attract thieves, they were entitled to rely on the
    contractors working above, rather than upon themselves, to prevent
    thieves entering through the ceiling of the shop. Indeed if it had
    been thought appropriate, in the circumstances, to employ a
    watchman to guard the jeweller's shop, the pursuers would
    apparently have considered that that expense should fall not upon
    themselves but upon the contractors working above. I do not think
    that that can be right.

    In truth the case raises a more fundamental question, which
    is whether an occupier is under a general duty of care to
    occupiers of adjacent premises to keep his premises lockfast in
    order to prevent thieves entering his premises and thereby gaining
    access to the adjacent premises. Let us suppose that, in Squires
    v. Perth and Kinross District Council,
    1986 SLT 30, the
    defenders had expressly warned the pursuers, by notice, that
    extensive work was going to be done to the flat above, and that
    this would mean that, for a period of time, scaffolding would be
    erected and all the windows of the flat would be removed. Would
    it then be objectionable that the pursuers should have to look to
    their own defences against thieves, in the light of these
    circumstances? I do not think so. Then, should it make any
    difference that no such notice was given, but it was obvious what
    the contractors were doing? Again, I do not think so. Then,
    suppose that the occupiers of the flat above the shop were an
    ordinary family and, when they went away on holiday, in all the
    hustle and bustle of getting their children and animals and
    possessions into their car, they forgot to lock their front door.
    While they were away a passing thief, seeing that the flat was
    unoccupied because the curtains were drawn, went up and tried the
    front door and, finding it unlocked, gained access to the flat and
    thence entered the jeweller's shop below and robbed it. Should
    the occupiers of the flat be held liable to the jewellers in
    negligence? Again, I do not think so; and I add that I do not
    think that it would make any difference that it was well known
    that burglars were operating in the neighbourhood. It is not
    difficult to multiply these homely examples of cases where a thief
    may gain access to a house or flat which is not lockfast - for
    example, where an old lady goes out to spend the day with her
    married daughter and leaves a ground floor window open for her
    cat; or where a stone deaf asthmatic habitually sleeps with his
    bedroom window wide open at night; or where an elderly
    gentleman leaves his french windows open when he is weeding at
    the bottom of his garden, so that he can hear the telephone. For
    my part, I do not think that liability can be imposed on an
    occupier of property in negligence simply because it can be said

    - 29 -

    that it is reasonably foreseeable, or even (having regard, for
    example, to some particular temptation to thieves in adjacent
    premises) that it is highly likely, that, if he fails to keep his
    property lockfast, a thief may gain access to his property and
    thence to the adjacent premises. So to hold must presuppose that
    the occupier of property is under a general duty to prevent thieves
    from entering his property to gain access to neighbouring property,
    where there is a sufficient degree of foresight that this may
    occur. But there is no general duty to prevent third parties from
    causing damage to others, even though there is a high degree of
    foresight that they may do so. The practical effect is that
    everybody has to take such steps as he thinks fit to protect his
    own property, whether house or flat or shop, against thieves. He
    is able to take his own precautions; and, in deciding what
    precautions to take, he can and should take into account the fact
    that, in the ordinary course of life, adjacent property is likely to
    be from time to time unoccupied (often obviously so, and
    sometimes for a considerable period of time) and is also likely
    from time to time not to be lockfast. He has to form his own
    judgment as to the precautions which he should take, having regard
    to all the circumstances of the case, including (if it be the case)
    the fact that his premises are a jeweller's shop which offers a
    special temptation to thieves. I must confess that I do not find
    this practical result objectionable. For these reasons I consider,
    with all respect, that Squires v. Perth and Kinross District
    Council,
    1986 SLT 30 was wrongly decided.

    The present case is, of course, concerned with entry not by
    thieves but by vandals. Here the point can be made that, whereas
    an occupier of property can take precautions against thieves, he
    cannot (apart from insuring his property and its contents) take
    effective precautions against physical damage caused to his
    property by a vandal who has gained access to adjacent property
    and has there created a source of danger which has resulted in
    damage to his property by, for example, fire or escaping water.
    Even so, the same difficulty arises. Suppose, taking the example I
    have given of the family going away on holiday and leaving their
    front door unlocked, it was not a thief but a vandal who took
    advantage of that fact; and that the vandal, in wrecking the flat,
    caused damage to the plumbing which resulted in a water leak and
    consequent damage to the shop below. Are the occupiers of the
    flat to be held liable in negligence for such damage? I do not
    think so, even though it may be well known that vandalism is
    prevalent in the neighbourhood. The reason is the same, that
    there is no general duty to prevent third parties from causing
    damage to others, even though there is a high degree of foresight
    that this may occur. In the example I have given, it cannot be
    said that the occupiers of the flat have caused or permitted the
    creation of a source of danger (as in Haynes v. Harwood [1935] 1
    K.B. 146, or in the example of the fireworks which I gave earlier)
    which they ought to have guarded against; nor of course were
    there any special circumstances giving rise to a duty of care. The
    practical effect is that it is the owner of the damaged premises
    (or, in the vast majority of cases, his insurers) who is left with a
    worthless claim against the vandal, rather than the occupier of the
    property which the vandal entered (or his insurers) - a conclusion
    which I find less objectionable than one which may throw an
    unreasonable burden upon ordinary householders. For these reasons,
    I consider that both Lamb v. Camden London Borough Council

    - 30 -

    [1981] QB 625 and King v. Liverpool City Council [1986] 1 W.L.R.
    890 were rightly decided; but I feel bound to say, with all respect,
    that the principle propounded by Lord Wylie in Evans v. Glasgow
    District Council,
    1978 S.L.T. 17, at p. 19, viz. that there is

    "a general duty on owners or occupiers of property ... to
    take reasonable care to see that it [is] proof against the
    kind of vandalism which was calculated to affect adjoining
    property,"

    is, in my opinion, too wide.

    I wish to emphasise that I do not think that the problem in
    these cases can be solved simply through the mechanism of
    foreseeability. When a duty is cast upon a person to take
    precautions against the wrongdoing of third parties, the ordinary
    standard of foreseeability applies; and so the possibility of such
    wrongdoing does not have to be very great before liability is
    imposed. I do not myself subscribe to the opinion that liability
    for the wrongdoing of others is limited because of the
    unpredictability of human conduct. So, for example, in Haynes v.
    Harwood
    [1935] 1 K.B. 146, liability was imposed although it
    cannot have been at all likely that a small boy would throw a
    stone at the horses left unattended in the public road; and in
    Stansbie v. Troman [1948] 2 K.B. 48, liability was imposed although
    it cannot have been at all likely that a thief would take advantage
    of the fact that the defendant left the door on the latch while he
    was out. Per contra, there is at present no general duty at
    common law to prevent persons from harming others by their
    deliberate wrongdoing, however foreseeable such harm may be if
    the defender does not take steps to prevent it.

    Of course, if persons trespass upon the defender's property
    and the defender either knows or has the means of knowing that
    they are doing so and that in doing so they constitute a danger to
    neighbouring property, then the defender may be under an
    affirmative duty to take reasonable steps to exclude them, in the
    limited sense explained by Lord Wilberforce in Goldman v.
    Hargrave
    [1967] 1 AC 645, 663-664; but that is another matter.
    I incline to the opinion that this duty arises from the fact that
    the defender, as occupier, is in exclusive control of the premises
    upon which the danger has arisen.

    In preparing this opinion, I have given careful consideration
    to the question whether P. Perl (Exporters) Ltd, v. Camden London
    Borough Council
    [1984] QB 342, in which I myself was a member
    of the Court of Appeal, was correctly decided. I have come to
    the conclusion that it was, though on re-reading it I do not think
    that my own judgment was very well expressed. But I remain of
    the opinion that to impose a general duty on occupiers to take
    reasonable care to prevent others from entering their property
    would impose an unreasonable burden on ordinary householders and
    an unreasonable curb upon the ordinary enjoyment of their
    property; and I am also of the opinion that to do so would be
    contrary to principle. It is very tempting to try to solve all
    problems of negligence by reference to an all-embracing criterion
    of foreseeability, thereby effectively reducing all decisions in this
    field to questions of fact. But this comfortable solution is, alas,
    not open to us. The law has to accommodate all the untidy

    - 31 -

    complexity of life; and there are circumstances where
    considerations of practical justice impel us to reject a general
    imposition of liability for foreseeable damage. An example of this
    phenomenon is to be found in cases of pure economic loss, where
    the so-called "floodgates" argument (an argument recognised by
    Lord Blackburn as long ago as 1875 in Cattle v. Stockton
    Waterworks Co.
    (1875) LR 10 QB 453, 457, the force of which
    is accepted not only in common law countries but also in civil law
    countries such as the Federal Republic of Germany) compels us to
    recognise that to impose a general liability based on a simple
    criterion of foreseeability would impose an intolerable burden upon
    defendants. I observe that in Junior Books Ltd, v. Veitchi Co.
    Ltd.
    [1983] 1 AC 520, some members of your Lordships' House
    succumbed, perhaps too easily, to the temptation to adopt a
    solution based simply upon "proximity." In truth, in cases such as
    these, having rejected the generalised principle, we have to search
    for special cases in which, upon narrower but still identifiable
    principles, liability can properly be imposed. That is the task
    which I attempted to perform in Leigh and Sillivan Ltd, v.
    Aliakmon Shipping Co. Ltd.
    [1985] Q.B. 350, by identifying a
    principle of transferred loss - a principle which has not, so far,
    achieved recognition by other members of your Lordships' House.
    As the present case shows, another example of this phenomenon is
    to be found in cases where the plaintiff has suffered damage
    through the deliberate wrongdoing of a third party; and it is not
    surprising that once again we should find the courts seeking to
    identify specific situations in which liability can properly be
    imposed. Problems such as these are solved in Scotland, as in
    England, by means of the mechanism of the duty of care; though
    we have nowadays to appreciate that the broad general principle
    of liability for foreseeable damage is so widely applicable that the
    function of the duty of care is not so much to identify cases
    where liability is imposed as to identify those where it is not (see
    Anns v. Merton London Borough Council [1978] AC 728, 752, by
    Lord Wilberforce). It is perhaps not surprising that our brother
    lawyers in France find themselves able to dispense with any such
    concept, achieving practical justice by means of a simple concept
    of "faute". But since we all live in the same social and economic
    environment, and since the judicial function can, I believe, be
    epitomised as an educated reflex to facts, we find that, in civil
    law countries as in common law countries, not only are we beset
    by the same practical problems, but broadly speaking we reach the
    same practical solutions. Our legal concepts may be different, and
    may cause us sometimes to diverge; but we have much to learn
    from each other in our common efforts to achieve practical justice
    founded upon legal principle.

    For these reasons I would dismiss this appeal.

    - 32 -


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