Council tenant’s action alleging damage caused by nuisance and negligence for which council were responsible fails — Damage was caused by escape of water, owing to actions of vandals, from an empty council flat above her own — Appeal by tenant against decision of county court judge who had rejected her claim — Question as to liability for wrongful actions of third parties — Appellant had warned the council as to the danger from trespassers and vandals presented by the unoccupied flat, and some ineffective steps had been taken by the council — Vandals, making more than one visit, had removed copper piping and other parts of the water-supply system, thereby causing the escape of water which flooded the appellant’s premises and later forced her to move — There was evidence that vandals moved quickly into empty premises and that even sheeting, unless perhaps of steel, did not stop them — Appellant submitted that the council were under a duty of care to prevent the known hazard of the empty flat, with its vulnerable pipes and water system offering a familiar target for vandals, from materialising into damage in a predictable and reasonably foreseeable way — It was accepted on behalf of the appellant that, although her claim was framed in nuisance and negligence, it was necessary in any case to prove negligence — The county court judge, following guidance in P Perl (Exporters) Ltd v Camden London Borough Council and Lamb v Camden London Borough Council, had decided against the appellant’s claim — The Court of Appeal considered these and a large number of other authorities, including Dorset Yacht Co Ltd v Home Office, Anns v Merton London Borough Council and Paterson Zochonis Ltd v Merfarken Packaging Ltd — The court concluded that it was too wide a proposition to suggest that a general duty of care was placed on a defendant to avoid providing third parties with the means of committing a tort against a plaintiff, although such a duty could arise in particular circumstances or in special relations — They agreed with the judge that in the present case the council owed no such duty to the appellant in respect of the actions of the vandals — The judge had found that it was not in fact possible for effective steps to be taken in the actual situation to defeat the activities of the vandals — This finding limited the area of the duty owed by the council in the circumstances of the case — Appeal dismissed
This was an
appeal by Mrs Mary King, tenant of a council flat at 16 Great Mersey Street,
Liverpool, against a decision of Judge Sachs, at Liverpool County Court,
dismissing a claim by Mrs King, based on nuisance and negligence, against the
council for damage caused by the escape of water from an empty flat, belonging
to the council, immediately above.
David Marshall
Evans QC and Graham Wood (instructed by Vauxhall Community Law Centre,
Liverpool) appeared on behalf of the appellant; John William Kay QC and William
Braithwaite (instructed by the City Solicitor, Liverpool City council)
represented the respondent council.
Giving judgment,
PURCHAS LJ said: This is an appeal by Mary King, the plaintiff, from a judgment
of His Honour Judge Sachs given at the Liverpool County Court on January 8
1985. The learned judge dismissed the plaintiff’s claim against the
respondents, the Liverpool City Council (‘the council’) for damage caused to
her property by water escaping from a flat owned by the council. The plaintiff
was a tenant of a neighbouring flat owned by them. The premises were at 16
Great Mersey Street, Liverpool. The plaintiff’s flat was no 16 and immediately
above it was Flat 16a which, at the material time, was vacant but for which the
council were responsible.
The short
facts leading up to this matter are as follows. The plaintiff, first under a
joint tenancy and later, after her divorce, as sole tenant, had been in Flat 16
since 1978. At the end of August 1982 the tenants of Flat 16a left the premises
and on September 2 the plaintiff, noticing that the flat above was unoccupied
and not protected in any way against trespassers or vandals, telephoned the
appropriate department of the council to this effect. That message was received
and passed to the appropriate department, the depot at Shaw Street, Liverpool,
where it was recorded and various steps were taken which, in the event, were
not successful.
Between
September 10 and 12 1982 vandals entered Flat 16a and removed copper piping and
other parts of the water-supply equipment in that flat. In the result water
escaped from the damaged system and flooded the plaintiff’s premises. The council
sent a plumber who did some repair work, but again the flat was not boarded up
either by plywood or, as is sometimes done, with metal sheeting.
Two days later
on September 14 1982 there was another flood and this was sufficiently serious
to cause the plaintiff, understandably, to leave the flat. It appears very
probable that that again was as a result of vandals invading Flat 16a.
Thereafter the plaintiff lived with her sister until December 1982, when she
was rehoused by the council.
In the meanwhile
there had been a third flood, which appears to have occurred, again probably as
a result of invasion by vandals, between September 16 and 17 1982.
Those are the
facts, about which there is no dispute. Work records etc were produced by the
council, indicating that boarding or sheeting work had been carried out to Flat
16a, although that was not seen by the plaintiff on her visits, and it was
accepted by witnesses for the council that it was not certain that the sheeting
work had been completed or effectively done. But their records certainly
indicated that steps had been taken to that end.
The plaintiff
brought an action in the Liverpool County Court in June 1983. She alleged
negligence against the council in the first instance and the council
counterclaimed for arrears of rent. Later, in February 1984, her particulars of
claim were amended. Then the plaintiff alleged a breach of covenant for the
quiet enjoyment of her flat (she was, of course, a tenant of the council);
alternatively
The claim for breach of covenant was abandoned at the trial below, but the
plaintiff continued her claim in nuisance and negligence.
The facts
material to this appeal, as found by the judge, can be shortly summarised. It
was accepted that the reason for the plaintiff’s request, although not
necessarily the same as the motive for the defendants’ action, ‘was that
unhappily, as in many areas of Liverpool, vandals readily discover that
premises have been vacated, quickly descend on them and cause substantial
damage’. From documents supplied by the defendants’ housing department there is
a card relating to 16a Great Mersey Street which shows on September 2 a request
for two sorts of work to be undertaken: ‘(1) to sheet up and (2) to remove
services’. The learned judge listened to a considerable body of evidence from,
among others, the superintendent of the Shaw Street Depot and the assistant
district housing manager.
The
superintendent of the Shaw Street Depot, Mr Peter Gibney, said this in
evidence:
I know
hundreds of tenants suffer from vandal damage. We sheet up and remove services.
I know they have a rising main in a vulnerable position. We do not go looking
for work. We used plywood albeit ineffective because we are told to. It looks
like a burst on rising main
that is
referring to the events in Flat 16a.
Rising main
would be made out of copper, basically the vandals go for the cylinder —
sometimes for the rising main. There is a stop tap for each flat — can’t remove
pipe — would affect [occupants of the other flats].
The evidence
of Stephen Alan Guy, the assistant district housing manager, was much to the
same effect:
Sheeting up
regarded as urgent — accepted by both departments as such. Wouldn’t expect
10/12 days to elapse. Many properties are not sheeted up — works department
slow or not reported.
If properties
not boarded up — vandals would get to know in short time. Services would be
interfered with in unprotected premises. No steps taken apart from boarding up
and remove rubbish.
Then, in
relation to flooding:
Three floods
uncommon — normally one. Local authority can remove services and secure
premises. Particularly vulnerable if attacked once because not sheeted up.
Then in
re-examination — a finding upon which the learned judge relied — he said:
No guarantee
sheeting up will stop vandals. Sheet steel is the answer. Quite often vandals
get to know premises vacant within day or so.
The learned
judge’s findings on this evidence are recorded in the notes of his judgment in
these terms:
Further
evidence was called by the defendants being the evidence of Mr Guy the
assistant district housing manager. His is an administrative post and he
explained the procedures to which I have referred. He accepted that at the time
there would be no record sent to his Department that completion of the work had
taken place. He agreed that unprotected premises would be likely to be the
victims of vandals. He also told me that there was no guarantee that sheeting
up would stop the vandals, although he would be more optimistic if steel
sheeting was used and he accepted that vandals get to know of vacant premises
within a day or so of them becoming vacant.
I have to find
as a matter of fact what occurred in respect of these vacated premises. I
accept the evidence of the plaintiff bearing in mind that I find facts on a
balance of probabilities. I accept she informed the department of the various
events that there were the three floods in the sequence to which she refers and
that certainly whenever she went to look at the flat 16a there was no sign of
boarding up. If therefore boarding up was done (of which I am not persuaded)
clearly it was ineffective as it was never observed by the plaintiff. I have no
reason to doubt either her description of the floods that occurred or the
damage done.
Equally I
accept the evidence called by the defendants that it is impossible to turn off
the rising main supply of drinking water without affecting other tenants. I
also accept that damage done to the flat 16a was damage done by vandals.
The learned
judge’s finding on nuisance was in the following terms. Having referred to the
speech of Lord Wright in Sedleigh-Denfield v O’Callaghan [1940]
AC 880, he said:
The facts that
I find are that regrettably boarding up is ineffective and further it is not
possible to block off the rising main for the reasons I have given. I do not
find therefore the defendants in this case have adopted or continued a
nuisance. Regrettably in the circumstances 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.
I find on the
evidence of the plaintiff that following the first flood a plumber did come to
visit the premises.
As the case
is pleaded the plaintiff maintains that the nuisance was created by the failure
to board up as opposed to the failure to rectify the plumbing. For these
reasons I am satisfied that the defendants abated the situation by sending the
plumber and did all that they could in that respect for the reasons I have
given. Counsel for the plaintiff sought to say that the nuisance was not an
escape of water but the condition of the premises. I was unpersuaded by the
argument and found it of no significance.
As regards the
claim in negligence, the learned judge based his finding on passages from the
judgments in the case of P Perl (Exporters) Ltd v Camden London
Borough Council [1984] 1 QB 342 and in particular an extract from the
judgment of Waller LJ, dealing with liability for the acts of third parties. At
p 349 he said:
But no case
has been cited to us where a party has been held liable for the acts of third
party when there was no element of control over the third party. While I do not
take the view there can never be such a case I do take the view that the
absence of control must make the court approach the suggestion that there is
liability for a third party who was not under the control of the defendant with
caution.
The learned
judge then referred to a passage from the judgment of Oliver LJ (as he then
was) in Lamb v Camden London Borough Council [1981] QB 625 at p
644 to this effect:
There may,
for instance, be circumstances in which the court would require a degree of
likelihood amounting almost to inevitability before it fixes a defendant with
responsibility for the act of a third party over whom he has and can have no
control.
The learned
judge based himself on those judgments and found against the plaintiff on her
claim in negligence.
Mr Evans, who
has appeared for the plaintiff on this appeal, has based his submissions in
negligence. He concedes — in my judgment rightly — that where nuisance was
concerned, he could only establish the second of the three grounds of liability
in nuisance, namely ‘if by a neglect of some duty he [the tortfeasor] allowed
it to arise’: see the judgment of Rowlatt J at p 338 in Noble v Harrison
[1926] 2 KB 332. Mr Evans submitted that the judge was wrong in considering
that he was bound to find for the defendants by the decision of this court in Perl’s
case. He distinguished that case on the basis that in Perl’s case the
failure to secure the premises had the result that mischievous third parties
gained access to neighbouring premises and there caused the damage in a way
that was not readily foreseeable. Here, Mr Evans submits, the failure to secure
the premises did not allow access to neighbouring premises, but allowed vandals
to come upon the very same premises as those occupied by the defendants, to
behave in a foreseeable and wrongful manner, which led to water escaping from
the water system in that council flat, thus doing damage to the plaintiff’s
flat and property.
Mr Evans
relied upon the findings and evidence to which I have already referred, namely
that, if premises were left unsecured, it was likely if not highly likely that
vandals would invade those premises and would cause damage thereto. Further, Mr
Evans submitted that it was foreseeable that they would be attracted to the
valuable parts of the fittings of the flat, namely the copper piping and the
cistern and metal attachments, and that in breaking these out from the premises
they would release waters from the rising main; therefore, says Mr Evans, the
damage to the plaintiff’s property and the flat was entirely foreseeable.
Encapsulated
(I hope without doing injustice to Mr Evans’ able submissions) he puts his case
in this way: these circumstances placed a duty upon the council, owed to the
occupier of neighbouring premises — because there was a potential hazard in
Flat 16a, constituted by the pipes and water system, in respect of which the
occupier was under a duty of care to prevent that potential hazard
materialising in a way reasonably foreseeable, ie as a result of the invasion
of vandals if the premises were not secure or the water cut off.
With reference
to Perl’s case Mr Evans submitted that the effect of that case in no way
bound the learned judge. He referred the court to a number of cases where it
was submitted that liability was established for the act of a third party.
This is an
area of the development of the law of tort and negligence which has received
considerable attention in recent years. It is not necessary in this judgment to
rehearse in detail the cases to which Mr Evans drew our attention and I hope
that by dealing with them summarily that will not be considered a discourtesy
to his submissions.
First of all,
reference was made to the well-known case, Dorset Yacht Co Ltd v Home
Office [1970] AC 1004. That case involved damage done by inmates of a
Borstal institution, who escaped to a nearby yacht harbour, took a yacht and
caused damage. The basis of
employed in the establishment to control the acts of the wrongdoers (the third
parties) and that, as a result of that breach of duty properly to contain the
Borstal inmates, the damage caused by interference with the yachts was
foreseeable and therefore recoverable. But, in considering that case, Oliver LJ
in a later case drew the distinction between the proximity between the Borstal
institution and the yacht basin and the more remote possibility of one of the
inmates escaping to John o’Groats and there doing damage. It is in each case
necessary for the court to look at the scope of the duty in relation to the
context in which it arises, and in the Dorset Yacht Club case the
circumstances were clearly established, showing a breach of duty on the part of
the warders for whom the defendants were responsible.
In Harris
v Birkenhead Corporation [1976] 1 WLR 279, as appears from the judgment
of Megaw LJ on p 288, it was conceded by counsel for the corporation that there
was a duty owed to the child trespasser who was injured as a result of his
trespassing on property for which the defendant corporation were responsible.
Again, in the
case of Ward v Cannock Chase DC [1985] 3 All ER 537, to which we
were referred, the council admitted liability for negligence, as appears from
the headnote in that case.
These cases
were dealing with the remoteness of the damage sustained in the context of the
facts and an established duty.
Davies v Liverpool Corporation [1949] 2 All ER 175, to which we
were referred, does not, with respect to Mr Evans’ submissions, assist. It is
based upon the vicarious responsibility of the corporation for the negligent
discharge of his duty by the conductor and, in my judgment, does not take the
matter any further.
Newby v General Lighterage Co Ltd [1955] 1 Lloyds Rep 273 was also
referred to us. There a barge had been moored, but not securely moored, on a
fast-running waterway. There was interference, and predictable interference, by
passers-by on the towpath, and liability was established.
As with Haynes
v Harwood [1935] 1 KB 146, the leading case in this area, duties existed
as between the users of either a highway or a waterway and the existence of
that duty was accepted. In this case the court is concerned with the existence
of the duty upon an occupier of land so to control access to that land by
strangers as to prevent injury to neighbouring property. The authorities
already mentioned in this judgment, in particular the judgment of Waller LJ,
indicate that there is no direct authority on this point. I turn briefly to Perl’s
case to refer to the judgment of Waller LJ at p 352 C. The learned lord justice
had been referring to the decision of this court in Lamb v Camden
London Borough Council [1981] QB 625 and in particular to the judgment of
Oliver LJ:
I agree with
Oliver LJ that the foreseeability required to impose a liability for the acts
of some independent third parties requires a very high degree of
foreseeability. Adapting the words of Lord Atkin, ‘ought the defendants to have
had the plaintiffs, as occupiers of no 142, in contemplation as being affected
when directing their minds to the question of repairing the doors and locks of
no 144?’ It is not sought here to make
the defendants liable for any act, it is sought to make the defendants liable
for an omission to act. Can it be said that the defendants ought reasonably to
have had in contemplation the fact that third parties would go into the empty
basement of 144, make a hole in an 18 inch wall large enough for somebody to
climb through and steal a large number of articles of clothing from
within? I would unhesitatingly answer
‘No’. Whether or not an occupier of a house can ever be liable to a neighbour
for an omission to act is doubtful. I do not however have to consider whether
such a case may possibly arise. It is sufficient to say that in this case I am
satisfied that there was no breach of duty by the defendants to the plaintiffs
and accordingly I would allow this appeal.
At p 355
Oliver LJ, referring to the Dorset Yacht case, said this:
The Dorset
Yacht case does not, therefore, in my judgment support the conclusion at
which the deputy judge arrived, unless it can be said that there was here some
special relation taking the case out of the general rule which excludes
liability for the acts of independent third parties. [Counsel for the
plaintiffs] has submitted that that special relation is to be found from a
number of factors combined that is to say (a) geographical propinquity; (b) the
defendants’ knowledge that the plaintiffs used their premises to store goods
which might be attractive to thieves; (c) the defendants’ knowledge or means of
knowledge that there had been frequent incursions to trespassers (including
burglaries in some of the flats in no 144) and (d) the relatively simple steps
required to impede the entry of trespassers by fitting an effective lock on the
front door. These factors, however, whilst they are, no doubt, relevant as
regards remoteness of damage and may possibly be said to give rise to a
relation between the defendants and the plaintiffs, go nowhere towards
establishing the sort of relation referred to by the majority in the Dorset
Yacht case and clearly envisaged by Dixon J in the passage from his
judgment in Smith v Leurs, 70 CLR 256 . . . namely a relation
between the defendant and the third party for whose act he is said to be
responsible.
Oliver LJ then
goes on to consider other cases, to which we were also referred by Mr Evans.
Returning to the point at p 357 H, he said:
Speaking for
myself, I am unable to see here any circumstances from which there could
properly be inferred any duty upon the defendants so to protect their own
premises as to prevent trespassers from entering the plaintiffs’ premises
beyond the fact that such entry was, as it plainly was, a foreseeable possibility.
In my judgment that is not, by itself, sufficient to raise the duty for which
the plaintiffs contend. Indeed the contrary proposition would, I think, lead to
the most startling and far-reaching consequences.
Robert Goff LJ
(as he then was) in his judgment refers to the question where the intervention
of a third party wrongdoer is involved. At p 359 he said this:
The vital
feature in the type of case under consideration is, as I see it, that the
plaintiffs are seeking to render the defendants liable in negligence for the
wrongdoing of a third party. Now there may indeed be circumstances where a
person may be liable for a third party’s wrongdoings. He may of course be
liable in contract (see Stansbie v Troman [1984] 2 KB 48); he may
be liable under the Occupiers’ Liability Act 1957 — for example, where he
invites a crowd of persons onto his land and part of his premises, designed to
control the crowd, are unfit for that purpose and collapse, with the result
that the plaintiff is injured (see Hosie v Arbroath Football Club Ltd
1978 SLT 122); he may be liable in nuisance, if he causes or permits persons to
gather on his land, and they impair his neighbour’s enjoyment of his land (cf Attorney-General
v Corke [1933] 1 Ch 89), though that case was expressed to be decided on
the principle in Rylands v Fletcher . . .; and he may be
vicariously liable for the third party’s wrongdoing. He may even be liable in
negligence, when the wrongdoer is a person who, by virtue of a special
relationship, is under his control: see Home Office v Dorset Yacht Co
Ltd . . . Speaking for myself, I do not rule out the possibility that there
are other circumstances in which a person may be liable in negligence for the
wrongdoing of a third party. This is a matter which this court considered
recently in Patterson Zochonis Ltd v Merfarken Packaging Ltd
[1983] 9 FSR 273, and which I need not therefore dwell upon in this judgment.
In particular, I have in mind certain cases where the defendant presents the
wrongdoer with the means to commit the wrong, in circumstances where it is
obvious or very likely that he will do so — as, for example, where he hands
over a car to be driven by a person who is drunk, or plainly incompetent, who
then runs over the plaintiff . . . But such cases are very different from the
present case, where the allegation is that the defendants failed to exercise
reasonable care to prevent a third party from causing damage to the plaintiffs.
In Smith v Leurs, . . . in a passage which was cited with
approval in [the Dorset Yacht Co case] Dixon J said . . .:
‘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.’
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 from 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.
Although we
were not referred to the case of Paterson Zochonis Ltd v Merfarken
Packaging Ltd it is helpful to look at that case in amplification of the
passage from the judgment of Robert Goff LJ, to which both Mr Evans and Mr Kay
(who appeared for the respondent council) referred. The facts of that case are
entirely different from those in the present case. The main action was an
action to strike out parts of the pleadings in a claim involving infringement
of copyright. For the purpose of this appeal it is necessary only to consider
the second claim, which based itself upon negligence. The summons was to strike
out inter alia a claim for damages for negligence brought by the holders
of a copyright against the printers whose products (ie the packaging and label)
enabled a third party (the tortfeasor) to infringe the copyright. Whitford J
struck out that part of the claim and on appeal the appeal was dismissed. The
court consisted of Oliver, Fox and Robert Goff LJJ. All the judgments were to
the same effect, but in the context of this appeal it is perhaps only
necessary, with respect to the other members of the court, to refer to the
judgment of Robert Goff LJ. I quote a few passages from that judgment. The
first is at p 296. Having dealt with the general claim in negligence and
referring to the classical statement of Lord Wilberforce in Anns v Merton
London Borough Council [1978] AC 728 at pp 751-752 the learned lord justice
at p 297 said this:
Even so, it
is necessary to sound a note of caution. There is a not insignificant number of
cases in which the courts have held that no duty of care exists; there are
others where they have held that the duty must be limited. Moreover, in
considering new cases as they arise the courts have, as must surely be right,
recognised that a heavy duty of care rests upon them to ensure that they
themselves do not overstep the bounds of reasonableness by imposing too onerous
legal duties upon members of the public. Vivid examples of this circumspection
are to be found in two of the leading cases, Hedley Byrne & Co Ltd v
Heller & Partners Ltd [1964] AC 465, and the Dorset Yacht
case itself. It is plain that, in considering whether the duty of care should
be negatived or limited in any new situation, the courts are making what is
usually called a decision of policy (see the Dorset Yacht case at p1059,
per Lord Diplock). Presented with such a case, the courts have to do their
limited best. They have no secretariat, or apparatus for enquiry. They have to
derive all the guidance they can from the authorities, and from the writings of
scholars; and they have the inestimable benefit of the assistance of counsel.
But they are also fully entitled to, and do, draw on their own professional and
practical experience. In the end, the choice must be one of judgment, in the
balancing of conflicting interests; and in the exercise of that judgment the
courts must strive neither unjustifiably to deprive potential plaintiffs of
remedies for their injuries, nor unjustifiably to impose too heavy a legal
responsibility on potential defendants.
At p 298 the
learned lord justice said:
The first
special feature is that there is here said to be a duty of care on the
defendant to avoid providing a third party with the means of committing a tort
against the plaintiff. Is there any general principle which excludes or limits
liability in such a case? In my
judgment, there is no principle which excludes liability. It is only necessary
to give examples such as handing a loaded gun to a small boy or a simpleton,
who then ‘has a go’ and shoots the plaintiff, or entrusting a car to a man who
is obviously drunk or even incompetent, to realise that there are cases in this
category where there is a duty of care. It is implicit in the decision of the
Privy Council in Yachuk v Oliver Blais [1949] AC 386 that there
may be liability in the first of these examples: and the Canadian case of Ontario
Hospital Services Commission v Borsoski [1974] 54 DLR 3d 339
provides strong persuasive authority that there may be liability in the second.
But even so a note of caution has to be sounded. Take the case of a dealer in
cars who sells a car to a man whom he knows to be an alcoholic, or to be the
husband of an alcoholic who to his knowledge drives her husband’s car; it is
difficult to believe that he would be held liable when, a few weeks later, the
husband or wife (as the case might be) was involved, while in a state of
intoxication, in a collision with the plaintiff’s car. Clearly there is a line
to be drawn.
Furthermore,
the examples I have so far given are of cases where the third party commits the
tort of negligence, not where he is involved in deliberate wrongdoing. Once
again, however, a duty of care cannot be negatived. A case such as Stansbie
v Troman . . . suggests examples . . .
Robert Goff LJ
then considers further such examples, and continues on the principle in these
words:
It is
tempting to conclude that, in the absence of some special relationship, there
can be no liability for damage caused to the plaintiff by the deliberate
wrongdoing of a third party. That this is so in cases where the defendant fails
to prevent a third party causing loss or damage to the plaintiff is
demonstrated by the Dorset Yacht case, and by the dictum of Dixon J (as
he then was) in Smith v Leurs . . . cited with approval in that
case, both primarily concerned with circumstances where the third party was
under the defendant’s control.
Robert Goff LJ
then referred to Lord Sumner’s judgment in Weld-Blundell v Stephens,
and continued:
However, the
analogy of cases where the defendant fails to prevent a third party from
causing injury to the plaintiff is not exact; and in the changed climate of
today, Lord Sumner’s dictum must be regarded as too sweeping.
He then
referred again to the Dorset Yacht case, to which I need not refer, and
continued:
Of course, in
the law of negligence the common criterion of foreseeability creates some
overlap between the various constituent parts of the tort; and the point made
by Lord Reid can perhaps be as legitimately made at the stage of breach of the
duty of care as it can at the stage of causation. Even so, the effect of Lord
Reid’s observation is that there is no principle of law excluding liability in
negligence for damage caused by the deliberate wrongdoing of a third party; but
only in the limited circumstances indicated by Lord Reid will liability attach
for such damage.
And I revert
to the quotation from the Dorset Yacht case, from which the learned lord
justice is referring:
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’ which is
likely to happen as a result of the wrongful or careless act of the defendant.
Bearing those
authorities in mind, I return to the findings of the learned judge, which I
have already cited in this judgment. The learned judge considered the general
system adopted by the council in the context of the extensive area of their
responsibility and the regrettable, but established, social climate at present
being experienced in that city, and indeed in other cities. The learned judge
considered with great care the effectiveness, or lack of effectiveness, of
‘boarding up’ as being one of the courses which admittedly the council from
time to time took as they could, although not in this specific context of
flooding; nevertheless flooding was a recognised result.
The learned
judge’s finding is, in my judgment, determinative of this appeal. Summarising
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 defendants, 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 LJ suggested
in the passage which I have just cited from the Paterson Zochonis Ltd
case, 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 learned judge was right to hold that
the council owed no duty to the plaintiff in respect of the acts of the vandals
in this case and accordingly I would dismiss this appeal.
Agreeing,
NICHOLLS LJ said: I add observations only on two points:
The first is
this. For the plaintiff Mr Marshall Evans sought to distinguish this case from
the decision of this court in P Perl (Exporters) Ltd v Camden London
Borough Council [1984] QB 342 on the ground that the ratio decidendi
of that case was that an occupier of property owed no duty so to use his
property as to prevent third parties from getting on to his property, and
thence on to the plaintiff’s property, because an occupier is not liable for
the escape of burglars from his land. Contrast the present case, it was
submitted, where the plaintiff does not have to set up the existence of a novel
duty of care. An occupier is under a duty to take reasonable care to ensure
that water on his property, which is a potential hazard to neighbouring properties,
does not escape and damage those properties. Here it was reasonably foreseeable
that a failure by the defendant to follow its normal practice of boarding up
empty property would be very likely to result in vandals entering, and
stripping away and removing the copper water pipes and cistern, with the
escaping water then causing damage to the plaintiff’s property.
I am unable to
accept that any material ground of distinction exists between the two cases. In
the Perl case, 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 LJ set out at p 359, in a passage already cited by
Purchas LJ, 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 LJ
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
defendants had a responsibility to take reasonable steps to prevent the escape
from their property of water in an ordinary domestic water system. I do not
consider that there is a greater responsibility on the defendants because the
third party caused damage by creating an escape of water than if the damage had
been caused by the third party
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.
Second,
although in the Perl case the plaintiff seems to have been relying on a
claim in negligence alone, and nuisance is relied on in the present case,
before us it was accepted that, for the plaintiff to succeed in nuisance, she
had to establish a breach of a duty of care. In this regard I add that this is
not a case where the acts of a trespasser have been continued or adopted by the
defendants as occupiers of their land.
CAULFIELD J
agreed with both judgments and did not add anything.
The appeal
was dismissed. No order was made for costs. Leave to appeal to the House of
Lords was refused.
