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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Rushbond Plc v The JS Design Partnership LLP [2021] EWCA Civ 1889 (14 December 2021) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1889.html Cite as: [2022] PNLR 9, [2021] EWCA Civ 1889 |
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ON APPEAL FROM BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES TECHNOLOGY AND CONSTRUCTION COURT (QBD)
MRS JUSTICE O'FARRELL
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE COULSON
and
LORD JUSTICE STUART-SMITH
____________________
Rushbond PLC |
Appellant |
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- and - |
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The JS Design Partnership LLP |
Respondent |
____________________
Fiona Sinclair QC & Gideon Shirazi (instructed by BWF Law LLP) for the Respondent
Hearing Date : 17 November 2021
____________________
Crown Copyright ©
LORD JUSTICE COULSON :
1 INTRODUCTION
2 THE CLAIM AS PRESENTED
"It was reasonably foreseeable that risk of harm to the Property by an unknown third party was (marginally) increased for one hour on the morning of 30 September 2014. However reasonable foreseeability of harm is inadequate to give rise to a duty of care at common law."
3 THE APPLICATION TO STRIKE OUT AND THE JUDGMENT BELOW
"38. In this case, the Court must determine whether it is satisfied that the claim is bound to fail. That involves consideration of the following issues:
i) whether, as the Claimant contends, this is not a pure omissions case, or at least arguably it is not an omissions case, because the Defendant created the danger and/or played a causative part in the train of events that led to the risk of damage;
ii) if it is an omissions case, whether the Defendant assumed a positive responsibility to safeguard the Claimant's property from harm under the Hedley Byrne principle.
39. On analysis of the assumed facts, the harm suffered was fire damage to the Claimant's property. That harm was not caused by the Defendant but by a third party unconnected with the Defendant. The danger causing the damage was fire. The Defendant did not create the source of the fire or provide the means by which the fire started. By leaving the door unlocked, the Defendant increased the risk that an intruder might gain entry to the building. Locking the door would have prevented the third party from causing the damage. Failing to lock the door amounted to a failure to prevent that harm. The examples given by Lord Goff in Smith (above) are apt in this case. Mr Jeffrey's failure to lock the door during his inspection inside the property may have been the occasion for the third party to gain access to the building but it did not provide the means by which the third party could start a fire and it was not causative of the fire. It follows that this case is a pure omissions case.
40. The assumed facts of this case do not give rise to the imposition of an assumption of responsibility on the basis of which a duty of care might be owed. Relationships in which a duty to take positive action to safeguard the property of another have been found typically include contractual or quasi-contractual arrangements, such as Stansbie v Troman, promises and trusts, as indicated by Lord Reed in Robinson or circumstances where reliance is placed on the Defendant's skill and expertise, as indicated by Lord Goff in Merrett. None of the legally significant features of the earlier authorities in which the courts have found an assumption of responsibility exists in this case. In a commercial context, it is difficult to conceive of circumstances giving rise to an assumption of responsibility where there are no dealings between the parties. As Ms Sinclair put it, there were no exchanges between the parties in this case which crossed the line.
41. Mr Brown seeks to rely on the Defendant's possession of the key as amounting to a special level of control over the source of the danger, which could give rise to an assumption of responsibility. However, the Defendant in this case did not hold itself out as having any special skill or expertise in safeguarding property. The Defendant was not a fire or security expert, was not a lettings or managing agent for the property, and was not entrusted with possession of the property during construction works. Mere possession of the key during an inspection of the property was not sufficient to give the Defendant responsibility for safeguarding the property from fire damage. The absence of any dealings between the Claimant and the Defendant preclude any finding of reliance by the Claimant on the Defendant, or any finding that reliance was objectively reasonable."
4 THE LAW
4.1 The 'Pure Omission' Cases
"Why does the law not recognise a general duty of care to prevent others from suffering loss or damage caused by the deliberate wrong doing of third parties? The fundamental reason is that the common law does not impose liability for what are called pure omissions."
Lord Goff then went on to identify two exceptions to that principle, namely where the relationship between the parties gives rise to an imposition or assumption of responsibility, or 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 spark off the danger, thereby causing damage to the defendant's neighbours. At 279D-F Lord Goff made the oft-repeated observation that the problem posed by these and other cases could not be solved simply through the mechanism of foreseeability.
"A similar point was made by Lord Diplock in Dorset Yacht Co. Ltd. v. Home Office [1970] AC 1004, 1060. There are sound reasons why omissions require different treatment from positive conduct. It is one thing for the law to say that a person who undertakes some activity shall take reasonable care not to cause damage to others. It is another thing for the law to require that a person who is· doing nothing in particular shall take steps to prevent another from suffering harm from the acts of third parties (like Mrs. Wise [the defendant]) or natural causes. One can put the matter in political, moral or economic terms. In political terms it is less of an invasion of an individual's freedom for the law to require him to consider the safety of others in his actions than to impose upon him a duty to rescue or protect.
…
Of course it is true that the conditions necessary to bring about an event always consist of a combination of acts and omissions. Mr. Stovin's accident was caused by the fact that Mrs. Wise drove out into Station Road and omitted to keep a proper look-out. But this does not mean that the distinction between acts and omissions is meaningless or illogical. One must have regard to the purpose of the distinction as it is used in the law of negligence, which is to distinguish between regulating the way in which an activity may be conducted and imposing a duty to act upon a person who is not carrying on any relevant activity. To hold the defendant liable for an act, rather than an omission, it is therefore necessary to be able to say, according to common sense principles of causation, that the damage was caused by something which the defendant did. If I am driving at 50 miles an hour and fail to apply the brakes, the motorist with whom I collide can plausibly say that the damage was caused by my driving into him at 50 miles an hour. But Mr. Stovîn's injuries were not caused by the negotiations between the council and British Rail or anything else which the council did. So far as the council was held responsible, it was because it had done nothing to improve the-visibility at the junction" (Emphasis supplied).
"39. It is a feature of the common law both of England and Wales and of Scotland that liability in negligence is not imposed for what is sometimes described as a "mere" omission (see eg. Salmond & Heuston on the Law of Torts 21st Ed. (1996), p.219). Lord Atkin in Donoghue v Stevenson [1952] AC 562 referred at 580 to the duty to "…take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour" (emphasis added). Yet it is accepted in both jurisdictions that the Pharisee who passed by the injured man on the other side of the road would not, by his failure to offer any assistance, have incurred any legal liability. A legal duty to take positive steps to prevent harm or injury to another requires the presence of some feature, additional to reasonable foreseeability that a failure to do so is likely to result in the person in question suffering harm or injury. The Pharisee, both in England and Wales and in Scotland would have been in breach of no more than a moral obligation.
40. The requisite additional feature that transforms what would otherwise be a mere omission, a breach at most of a moral obligation, into a breach of a legal duty to take reasonable steps to safeguard, or to try to safeguard, the person in question from harm or injury may take a wide variety of forms. Sometimes the additional feature may be found in the manner in which the victim came to be at risk of harm or injury. If a defendant has played some causative part in the train of events that have led to the risk of injury, a duty to take reasonable steps to avert or lessen the risk may arise. Sometimes the additional feature may be found in the relationship between the victim and the defendant: (eg. employee/employer or child/parent) or in the relationship between the defendant and the place where the risk arises (eg. a fire on the defendant's land as in Goldman v Hargrave]1967] 1AC 645 Sometimes the additional feature may be found in the assumption by the defendant of responsibility for the person at risk of injury (see Smith v Littlewoods Organisation Ltd [1987] AC 241 per Lord Goff of Chieveley at 272). In each case where particular circumstances are relied on as constituting the requisite additional feature alleged to be sufficient to cast upon the defendant the duty to take steps that, if taken, would or might have avoided or lessened the injury to the victim, the question for the court will be whether the circumstances were indeed sufficient for that purpose or whether the case remains one of mere omission."
"69. …
4.The distinction between careless acts causing personal injury, for which the law generally imposes liability, and careless omissions to prevent acts (by other agencies) causing personal injury, for which the common law generally imposes no liability, is not a mere alternative to policy-based reasoning, but is inherent in the nature of the tort of negligence. For the same reason, although the distinction, like any other distinction, can be difficult to draw in borderline cases, it is of fundamental importance. The central point is that the law of negligence generally imposes duties not to cause harm to other people or their property: it does not generally impose duties to provide them with benefits (including the prevention of harm caused by other agencies). Duties to provide benefits are, in general, voluntarily undertaken rather than being imposed by the common law, and are typically within the domain of contract, promises and trusts rather than tort. It follows from that basic characteristic of the law of negligence that liability is generally imposed for causing harm rather than for failing to prevent harm caused by other people or by natural causes. It is also consistent with that characteristic that the exceptions to the general non-imposition of liability for omissions include situations where there has been a voluntary assumption of responsibility to prevent harm (situations which have sometimes been described as being close or akin to contract), situations where a person has assumed a status which carries with it a responsibility to prevent harm, such as being a parent or standing in loco parentis, and situations where the omission arises in the context of the defendant's having acted so as to create or increase a risk of harm.
…
70 Returning, then, to the second of the issues identified in para 20 above, it follows that there is no general rule that the police are not under any duty of care when discharging their function of preventing and investigating crime. They generally owe a duty of care when such a duty arises under ordinary principles of the law of negligence, unless statute or the common law provides otherwise. Applying those principles, they may be under a duty of care to protect an individual from a danger of injury which they have themselves created, including a danger of injury resulting from human agency, as in the Dorset Yacht case [1970] AC roo4 and Attorney General of the British Virgin Islands v Hartwell [2004] 1 WLR 1273. Applying the same principles, however, the police are not normally under a duty of care to protect individuals from a danger of injury which they have not themselves created, including injury caused by the conduct of third parties, in the absence of special circumstances such as an assumption of responsibility."
"28. Like private individuals, public bodies did not generally owe a duty of care to confer benefits on individuals, for example by protecting them from harm: see, for example, Sheppard v Glossop Corpn [1921] 3 KB 132 and East Suffolk Rivers Catchment Board v Kent [1941] AC 74. In this context I am intentionally drawing a distinction between causing harm (making things worse) and failing to confer a benefit (not making things better), rather than the more traditional distinction between acts and omissions, partly because the former language better conveys the rationale of the distinction drawn in the authorities, and partly because the distinction between acts and omissions seems to be found difficult to apply. As in the case of private individuals, however, a duty to protect from harm, or to confer some other benefit, might arise in particular circumstances, as for example where the public body had created the source of danger or had assumed responsibility to protect the claimant from harm: see, for example, Dorset Yacht Co Ltd v Home Office, as explained in Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15; [2004] 1 WLR 1057, para 39."
4.2 Keeping Property Secure
"I agree that the duty must be within the scope of the contractual relationship between these two persons, but I think that contractual relationship did impose a duty on the plaintiff decorator to take reasonable care with regard to the state of the premises if he left them during the performance of his work. That, I think, was the measure of the duty…
Mr Brown [counsel for the decorator] referred to Weld Blundell v Stevens [1920] A.C. 956 and in particular to the following passage in the speech of Lord Sumner (at 986): 'In general (apart from special contracts and relations and the maxim respondent superior) even though A is in fault he is not responsible for injury to C which B, a stranger to him, deliberately chooses to do. Though A may have given the occasion for B's mischievous activity, B them becomes a new and independent cause.'
I do not think that Lord Sumner would have intended that very general statement to apply to the facts of the case such as the present where, as the judge points out, the act of negligence itself consisted in the failure to take reasonable care to guard against the very thing that in fact happened The reason why the decorator owed a duty to the householder to leave the premises in a reasonably secure state was because otherwise thieves or dishonest persons might gain access to them; It seems to me that if the decorator was, as I think he was, negligent in leaving the house in this condition, it was as a direct result of his negligence that the thief entered by the front door, which was left unlocked, and stole these valuable goods."
"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 plaintiffs 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 is proceeded on the basis that the decorator was liable because it was 'as a direct result of his negligence that the thief entered by the front door'. 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 reasons for doing so would have been to prevent the consequence which he ought reasonable to have foreseen of unauthorised intrusion and theft from the house whose door it was. "
"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 wrong doing 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 where such responsibility was held to arise from a contract. In that case a decorator, left alone on the premises by the householders 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."
"The defendants have, of course, done nothing; so the case is one, not of an act, but of an omission. They simply omitted to keep and maintain an effective lock on the front door giving access to no. 144 and they similarly omitted to keep and maintain effective internal barriers such as would or might have prevented trespassers obtaining access to the rear wall of the plaintiffs' store-room. It cannot be asserted that those omissions, by themselves, caused any injury to anyone. They merely enabled some unknown third party over whom the defendants had no control to effect an unlawful entry upon the· defendants' premises and thence to effect an equally unlawful entry upon the plaintiffs' premises. It would, in fact, be more accurate to say that the omissions failed to impede such an entry rather than that they enabled it to take place, for it is by no means certain that even an effective lock on the outer door would have prevented an incursion by a really determined gang of thieves. Thus the assertion that the defendants are liable for the damage which the plaintiffs sustained rests upon the proposition that the breaking into the plaintiffs' premises was the natural and probable consequence of the defendants' failure to secure their own premises from invasion. "
5 PRELIMINARY OBSERVATION
6 IS IT ARGUABLE THAT THIS IS NOT A CLAIM BASED ON 'PURE OMISSIONS'?
6.1 General Principles
6.2 Involvement in the Relevant Events
6.3 The Case Fits Within a Recognised Line of Authority
7 OTHER LEGAL ARGUMENTS
7.1 The Exceptions
7.1 (a) Creation of Danger
7.1 (b) Assumption of Responsibility
7.2 Meadows v Kahn
8 CONCLUSIONS
LORD JUSTICE STUART-SMITH
LADY JUSTICE ASPLIN
Note 1 All of the matters set out in this part of the judgment are, I think, expressly pleaded, but if any have been missed, the appellant would, in the circumstances, be entitled to permission to amend the statement of case so as to rectify the omission. [Back]