As a recent Court of Appeal case shows, a party may owe a duty of care to anyone who is a victim of violence while visiting its premises
Key points |
? A person is not normally responsible for deliberate harm caused by another ? However, a protective relationship may carry a duty of care to prevent assaults |
The English law of negligence has always drawn a distinction between harming someone and failing to improve his condition or to protect him from harm. This somewhat hard-nosed (many would say amoral) stance means that although a duty of care may apply to the former, it does not normally extend to the latter.
Many litigants have challenged this basic principle or argued that the facts of their case should provide an exception to it. Most of the cases where such arguments have succeeded have fallen into two categories, namely: the defendant had a sufficient relationship with the claimant to create a legal duty of protection or a sufficient relationship with the perpetrator to create a duty of control.
Many of the cases in which a duty to control third parties has been alleged have concerned the use (and abuse) of real property. Owners and occupiers have been sued, for example, when thieves used their empty, dilapidated buildings to access neighbouring property (P Perl (Exporters) Ltd v Camden London Borough Council [1984] QB 342) or trespassing children lit fires with disastrous consequences: Smith v Littlewoods Organisation Ltd [1987] AC 241. Both actions failed, the House of Lords insisting in the latter case that liability could not arise unless the third party’s intervention was not only foreseeable but “highly likely”.
“Never say never” is of course a useful maxim to bear in mind when dealing with the law of negligence. A recent decision of the Court of Appeal suggests that a new generation of judges may be more receptive to the argument that a landowner must bear some responsibility for what others do on its property.
Waiting for trouble
Everett v Comojo (UK) Ltd (t/a Metropolitan) [2011] EWCA Civ 13; (2011) 161 NLJ 172 arose out of an incident at the Met Bar, a nightclub in the Metropolitan Hotel in London that was open to members, their guests and hotel residents. The claimants were drinking in the bar as guests of a member when someone in their group touched a waitress on the bottom. The waitress did not complain about the incident, but a club member named Mr Balubaid witnessed it and told her that, before the end of the evening, she would have an apology from the person responsible.
Some time later, Mr Balubaid asked for a named person, whom he described as his driver, to be admitted on arrival. This person, who joined Mr Balubaid at his table at around 2am, was described by staff as “scary”. Fearing that a serious confrontation would arise if he were the one who was intended to extract an apology, the waitress reported her concerns to the bar manager’s office.
What the bar manager might have done is a matter of speculation since while the waitress was in the office, Mr Balubaid’s driver started a fight with the claimants and inflicted serious stab wounds on both of them. In a criminal prosecution based on this incident, he was convicted of wounding with intent to cause grievous bodily harm and sentenced to life imprisonment. The claimants subsequently sought compensation for their injuries in an action for negligence against Mr Balubaid (who disappeared without trace) and the nightclub.
The trial judge followed the Australian case of Chordas v Bryant (Wellington) Pty Ltd (1988) 91 ALR 149, where it was held that hotel managers may be under a duty of care to protect one patron from the actions of another if a real risk of injury is reasonably foreseeable. Unsurprisingly, the defendant appealed on the ground that it contradicted a long line of
In delivering the unanimous judgment of the Court of Appeal, Smith LJ pointed out that the earlier case law predated Caparo Industries plc v Dickman [1990] 2 AC 605, where the House of Lords had created the modern test for a duty of care in novel circumstances. That test, which requires proximity of relationship, foreseeability of injury and “fair, just and reasonableness”, was laid down in an action brought by an investor against the auditors of a company’s published accounts. However, the judge said that it was of equal relevance in the current situation.
Applying that test, Smith LJ regarded the relationship between a nightclub and its guests as an appropriately proximate one, given both the management’s control of admission to the premises and its economic reliance on its guests. As for foreseeability, she could see no answer to the argument that, where alcohol was consumed, a risk of assault arose, at least at a level that could not safely be ignored.
The final element was, perhaps, the most contentious. In deciding that it would be “fair, just and reasonable” to impose a duty of care, the judge pointed out that the nightclub would owe its guests a duty under the Occupiers’ Liability Act 1957 in respect of the state of the premises, and that it:
“would be surprising if management could be liable to a guest who tripped over a worn carpet and yet escape liability for injuries inflicted by a fellow guest who was a foreseeable danger.”
Sentient beings
To this one might reply that the control that management has over its carpets is different from the control that it has over independent human beings, who have their own motives for their actions. That, after all, is exactly why English law adopted the position outlined above, which it regarded as being compatible with an occupier’s responsibility for the condition of the premises.
Having agreed that a duty of care was owed, Smith LJ dashed the claimants’ hopes by holding that the duty had not been breached. Given that there appeared to be no likelihood of immediate confrontation, the waitress’s decision to inform the bar manager of her concerns, rather than to approach a door supervisor and thereby security, had been reasonable.
So, no actual liability in this case. However, that will be of little consolation to landowners and occupiers generally, which may expect to find the views of the Court of Appeal cited by anyone who is a victim of violence while on their premises.
John Murdoch, professor emeritus, Reading University
