The High Court has struck out a property owner's tort claim against an architect's firm, and granted summary judgment to the firm, pursuant to a finding that the firm did not owe a duty of care to protect the property from fire damage caused by the deliberate or careless actions of an unknown third party for whom the firm was not responsible.
Background
Rushbond PLC ("the Claimant") was the owner of an unoccupied cinema ("the Property"), which was protected by an alarm system and lockable doors. An employee of The J S Design Partnership LLP ("the Defendant") visited the Property, having been furnished with the key and the code to the alarm by the marketing agents. During his visit, he left the door unlocked and alarm de-activated. Upon exiting the building, the employee re-set the alarm and locked the door. Later that evening, a fire was started at the Property which caused extensive damage; the Claimant averred the fire was started by intruders who gained access to the Property through the unlocked door.
The Claimant stated the Defendant owed a common law duty of care in tort to the Claimant in relation to the security of the Property during the employee's visit, such duty arising from him making an unaccompanied visit to the Property, and/or from having disabled the protections in place during and for the purposes of his visit. The Defendant contended that no such duty of care was owed to the Claimant and subsequently sought an order that the claim be struck out pursuant to CPR 3.4(2)(a) and/or summary judgment be given for the Defendant pursuant to CPR 24.1.
The Judgment
In deciding whether to grant the Defendant's application for the claim to be struck out or for summary judgment to be given, the Court must determine whether the claim is bound to fail, having regard to the applicable legal principles. The issues to be considered in this regard (without conducting a mini trial) were twofold:
- "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;
- 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 [i.e. where the duty arises as a result of the relationship between parties]."
O'Farrell J held, regarding (i), that the employee'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. Hence, the case was a pure omissions case.
As regards to (ii), O'Farrell J considered the circumstances in which a duty of care in tort would be imposed, as per the Supreme Court's decisions in Michael v Chief Constable of South Wales Police [2015] UKSC 2 and Robinson v Chief Constable of West Yorkshire [2018] UKSC 4. The Judge summarised the Supreme Court's rulings as rejecting, "the use of a universal test to determine the circumstances in which a duty of care will be found to exist", and affirming that the starting point for determining whether a duty exists is, "whether the circumstances of the case in question have been found to give rise to the existence or non-existence of a duty of care in other cases. In determining whether or not to extend a duty of care to novel situations, the court adopts an incremental basis by analogy with established categories of case where a duty has been found to exist."
The starting point for pure omissions cases is that the common law does not generally impose liability for negligence in relation to pure omissions (Smith v Littlewoods Organisation Ltd [1987] AC 241, approved by the Supreme Court in Michael). The judge acknowledged that the rule was not absolute and that exceptions had emerged:
- where the defendant was in a position of control over the third party and should have foreseen the likelihood of the third party causing damage to somebody in close proximity if the defendant failed to take reasonable care in the exercise of that control; or
- the defendant assumes a positive responsibility to safeguard the claimant under the Hedley Byrne principle (i.e. due to the relationship between the parties) or where reliance is placed on the defendant's skill and expertise.
It was accepted that the first exception did not apply in this case. Therefore, in order for the Defendant to be liable, it would have had to have assumed a positive responsibility to the Claimant.
O'Farrell J held, "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". The Judge observed that a duty to take positive action to safeguard the property of another usually arises where there is a relationship involving contractual or quasi-contractual arrangements, promises and trusts. These were not present in this case. It was also an accepted fact that there had not been any dealings between the parties, and the Judge, citing Involnert Management Inc v Aprilgrange Ltd [2015] 2 L1.Rep.289, noted "In cases concerning professional services, where there have been no direct dealings between claimant and defendant, no such assumption of responsibility has been found. "
Further, O'Farrell J held that the Defendant did not hold itself out as having any special skill or expertise in safeguarding property – he 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 the inspection was not sufficient to give the Defendant responsibility for safeguarding the Property from fire damage. Finally, O'Farrell J held that the absence of any dealings between the Claimant and the Defendant precluded any finding of reliance by the Claimant on the Defendant, or any finding that reliance was objectively reasonable.
Comment
This case is a useful reminder of the law on pure omissions and the assumption of responsibility. In this case, it is interesting, though not surprising, that even though it was accepted that, by leaving the door unlocked, the Defendant increased the risk that an intruder might gain entry to the building and that locking the door would have prevented the third party from causing the damage, this failure, even with a high degree of foresight that damage may occur, was not enough to find that the Defendant had created the danger. This was not a case like Haynes v Harwood [1935] 1 KB 146, where a carter was held liable after creating a source of danger by leaving his horses unattended on a busy street and they then bolted and injured a police officer.
Whilst reinforcing how the scope of tortious liability in this type of situation is dependent on the individual case's factual matrix, the finding of no assumption of responsibility in this case should provide comfort to professionals who regularly perform site visits as part of their job. As a result of this case, on a practical level, professionals may find that unaccompanied visits become a thing of the past.
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