Landlord and tenant — Covenant to repair — Disrepair of front door — Whether landlord liable for loss following entry of burglar
In 1993 the
plaintiff acquired a 99-year lease of a flat in a building converted into flats
with internal front doors sharing the use of common parts including the main
front door; the defendant held the reversion. Under the lease the landlord
covenanted to maintain, repair, redecorate and renew, inter alia, the
common parts. On August 17, September 10 and 23 1993 the flat was burgled. The
plaintiff’s claim against the defendant landlord, for breach of repair of the
front door, was allowed in the court below and he was awarded damages and
interest of £6,123.19. The defendant appealed.
breach of covenant by the defendant, was causative of the burglary. It would
have been in the contemplation of the parties at the date of the lease in 1983
that if the front door fell into disrepair and did not provide any real
obstacle to a would-be intruder, a burglary was not unlikely. The damages for
the burglary were not too remote. Where loss results partly from a breach of
contract and partly from an intervening act of a third party, the party in
breach will be liable for the loss if the intervening act was reasonably
foreseeable by the parties at the time of the contract. The breach by the
defendant was a substantial cause of the loss to the plaintiff. The doctrine of
novus actus interveniens did not apply.
The following
cases are referred to in this report.
Iron
& Steel Holding & Realisation Agency v
Compensation Appeal Tribunal [1966] 1 WLR 480; [1966] 1 All ER 769, DC
London
Joint Stock Bank Ltd v Macmillan and Arthur
[1918] AC 777
Stansbie v Troman [1948] 2 KB 48; [1948] 1 All ER 599; (1948) 64 TLR
226, CA
Tucker
v Linger [1882] 21 ChD 18
This was an
appeal by the defendant, Rubypoint Ltd, from a decision of Judge Viner CBE QC
in Brighton County Court, whereby she gave judgment to the plaintiff, David
Lester Marshall, for breach of covenant of a lease.
David Dabbs
(instructed by Sharpe Pritchard, London agents for Grant Bott & Co, of
Worthing) appeared for the appellant; Darren Howe (instructed by Fitzhugh
Gates, of Brighton) represented the respondent.
Giving the
first judgment at the invitation of Kennedy LJ, Buckley J said: In 1993 Mr Marshall, the respondent to
this appeal, lived in a flat at 47C West Hill Street, Brighton. On August 17,
September 10 and again on September 23 1993 the premises were burgled. On each
occasion property was stolen, but, more seriously, Mr Marshall was assaulted
during the burglary on September 10. Proceedings were instituted in Brighton
County Court against Rubypoint Ltd, the lessors of the flat, claiming damages
to compensate Mr Marshall for his personal injuries, consequential expenses and
the items stolen. By her judgment dated January 10 1996 Judge Viner CBE QC
awarded damages and interest totalling £6,123.19. It is against that judgment
that Rubypoint now appeals.
The original
lease in respect of Mr Marshall’s flat was in 1983. By its terms, the original
lessors demised the premises therein described to the lessee for 99 years in
return for payment of rent, but reserved from the demise certain parts of the
building. By clause 5 (4) the lessor
common parts. It is agreed that the common parts included the front door of the
building. It is apparent from the recitals in the lease that the premises as a
whole, which were owned by the lessor, were or were to be divided into flats
and let separately. Each flat had its own internal front door. Mr Marshall took
an assignment of the remainder of the lease in respect of flat C on November 30
1984. Rubypoint acquired the reversion in 1992, so that by 1993 Mr Marshall
occupied flat C as lessee of Rubypoint, the lessor.
In the county
court, Mr Marshall contended that the front door was in a state of disrepair
which amounted to a breach of the covenant to repair and was sufficiently
causative of the burglaries. Rubypoint, in effect, denied everything. However,
it seems from the judgment, that the main issues were whether Mr Marshall’s
loss and damage was too remote and or whether there was a break in the chain of
causation or a novus actus interveniens. As to the state of the front
door, the learned judge found that in April 1993 someone forced the door open,
there was a hole in the glass top half of it and a piece of cardboard had been
stuck on with packing tape. Further, that the lock was hanging loose and one
only had to push the door to gain entrance. Mr Marshall was the only tenant at
the time. Squatters had moved into the premises some time in April and
subsequently refitted the lock, but apparently not securely. Mr David Dabbs,
counsel for Rubypoint, told us that the door could be pushed open. As a more
general indication, the learned judge found that the premises were dilapidated
in 1992 when Rubypoint purchased the reversion. A specification for external
decoration and repairs was prepared by Peter Overill & Associates,
chartered building surveyors, and dated April 21 1993. It concluded at para 18
of Part 3:
Strip out
front entrance door complete with frame and cart away. Supply and fix new front
entrance door and frame to match existing in all respects complete with
glazing, letterbox 3 No 100mm steel hinges and Yale night latch complete with
cylinder pull.
No repairs had
been carried out by the date of the first burglary on August 17. There is a
photograph of the front door taken on October 3 which, the learned judge found,
showed its condition as from August 20 onwards. It is a sorry sight. Although a
carpenter attended on August 20, after the first burglary, and fitted a new
Chubb lock to the front door and replaced Mr Marshall’s front door, the Chubb
lock was gouged out within a couple of days. Thereafter, there was no lock and
the door could only be pulled to. That was the state of affairs at the time of
the second and third burglaries.
There can be
no doubt that Rubypoint was in breach of clause 5(4). Mr Dabbs has accepted
that. There can equally be no doubt to my mind that the breach of covenant was
a substantial cause of the burglaries although Mr Dabbs did not accept that. He
submitted that, looking fairly and objectively at the lease and at the
circumstances at the time of lease, the tenant had a duty to protect himself,
that the front door was only the first line of defence and the learned judge
should have balanced the obligations of both parties. Mr Dabbs’ difficulty was
the finding of fact, which he could not challenge, to the effect that Mr
Marshall’s door was the same as at the time of the lease save that he had added
a security lock and chain after the first burglary at the behest of his
insurers. In other words, no sensible criticisms or breach of obligation could
be laid at his door. He had improved it.
One of the
main purposes of a front door is to provide security. A door which is obviously
broken and dilapidated, as this one was, and which can easily be pushed open is
an invitation to would-be burglars. Once inside the premises, they are likely
to use such force as is necessary to enter the flats.
I conclude
that the disrepair of the door, and hence the breach of covenant by Rubypoint,
was causative of the burglary.
Mr Dabbs also
submitted that the damages were too remote and the acts of the burglars broke
the chain of causation.
I turn to
those issues. Loss from burglary in this case is not too remote in law if at
the time of contracting it was within the reasonable contemplation of the
parties as a not unlikely result of the disrepair of the front door. Mr Dabbs
submitted that the learned judge had applied that test and considered the
question of novus actus at the wrong time, that is during the period
April to September 1993 as opposed to the time of contracting. Indeed, he made
the same submission on causation. With respect to the learned judge, for whose
careful and full judgment I am grateful, it is not clear to me what time she
had in mind when applying the relevant tests. Certainly, she made several
findings touching the question of foreseeability based on the April to September
period. Perhaps that was because those matters were the subject of evidence and
argued forcefully by counsel.
However, even
if Mr Dabbs could make good that submission it would not avail him because it
is clear to me that if one goes back to the date of the original lease, which I
accept is the correct approach, the answer would be the same. The relevant
circumstances at that time may be ascertained from the lease itself:
(i) the lessor
reserved from the demise certain parts of the premises including the front
door;
(ii) by clause
5 (4) he covenanted to maintain and repair it;
(iii) the
premises were divided into six flats each with its own internal front door;
(iv) the front
door of flat C was only 10ft from the main front door;
(v) the date
of the lease was 1983 and the premises in Brighton.
I would only
add the obvious, that the main purpose of a front door, apart from affording
access and egress, is to keep out uninvited visitors and that includes
burglars.
In my
judgment, it would have been within the contemplation of the parties that if
the front door fell into disrepair and did not provide any real obstacle to a
would-be intruder, a burglary was not unlikely. I do not consider the fact that
flat C had its own front door alters the position. A burglar, having gained
easy access through the main front door would be out of sight of passers-by and
feel more secure. He would be unlikely to baulk at the prospect of forcing an
internal door.
I conclude
that damages for burglary are not too remote, even without drawing on the
various findings by the learned judge which undoubtedly enhanced Rubypoint’s
culpability. Those findings included that actual notice was given by Miss
Marshall, Mr Marshall’s sister, to Rubypoint of the state of the front door and
the first burglary. To put it euphemistically, the learned judge preferred the
evidence of Mr and Miss Marshall to the witnesses called on behalf of the
defendant.
Mr Dabbs’
submissions aimed at establishing a break in the chain of causation run into
insuperable obstacles in law and on the facts. Rubypoint’s duty to repair the
front door was, at least in part, so as to secure the premises against
intruders. It was in breach of that duty and cannot set up the burglar’s acts
as breaking the chain of causation. Alternatively, if it be any different, it
can be said that burglary was a foreseeable consequence of the breach with the
same result.
Mr Dabbs
recognised his difficulties and, quite properly, reminded us of several of the
well known cases in that area of the law. The first was London Joint Stock
Bank Ltd v MacMillan and Arthur [1918] AC 777. That was the case
which dealt with the duty of a customer of a bank to draw cheques in a sensible
manner. Two very short citations may suffice, the first from the speech of Lord
Finlay LC (p789):
It has been
often said that no one is bound to anticipate the commission of a crime, and
that to take advantage of blank spaces left in a cheque for the purpose of
increasing the amount is forgery, which the customer is not bound to guard
against. It has been suggested that prevention of forgery must be left to the
criminal law. I am unable to accept any such proposition without very great
qualification. Every-day experience shows that advantage is taken of negligence
for the purpose of perpetrating frauds. A warehouseman is bound to take
precautions against theft, and if he fails to do so he will be liable to the
owner if the goods are stolen.
At p794 (also
in the speech of Lord Finlay):
The fact that
a crime was necessary to bring about the loss does not prevent its being the
natural consequence of the carelessness.
Stansbie v Troman [1948] 2 KB 48 was a case concerning a contractual
duty to take care. There, the contractor was carrying out decorations to the
house in question which was burgled. Tucker LJ said (p52):
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; and 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 negligence that the thief entered by the front door, which was
left unlocked, and stole those valuable goods.
It is clear
from those authorities that the fact that a crime is committed does not, of
itself, break the chain of causation. Iron & Steel Holding &
Realisation Agency v Compensation Appeal Tribunal [1966] 1 WLR 480
is a case which illustrates again that an intervening event, if foreseeable, is
not or does not constitute a novus actus interveniens. Winn LJ said
(p492):
In my
opinion, wherever any intervening factor was itself foreseen or reasonably
foreseeable by the actor, the person responsible for the act which initiated
the chain of causes leading to the final result, that intervening cause is not
itself, in the legal sense, novus actus interveniens breaking the chain
of causation and isolating the initial act from the final result.
Mr Dabbs also
referred us to Tucker v Linger [1882] 21 ChD 18. I do not derive
any assistance from that case. It was one that turned on its own special facts
where a tenant’s corn was damaged when rainwater came in through the roof. The
tenant attempted to recover damages against the landlord for his breach of obligation
to supply materials to the tenant. The court held that under the terms of the
lease it was the tenant’s obligation to carry out the repairs and that
obligation was not conditional on the landlord’s obligation to supply the
materials. It is not surprising that the tenant failed.
The learned
judge considered the cases to which she was referred carefully. She concluded,
as have I, that burglary was a foreseeable consequence of an insecure front
door. The chain of causation was not broken. In this day and age — and 1983 was
not sufficiently different — assault in the course of burglary is, unhappily,
not unusual. Mr Dabbs did not submit the contrary.
Finally, Mr
Dabbs submitted that Mr Marshall had failed to mitigate his loss in the sense
that after the first burglary, in particular, he should have realised the
situation was unsafe and taken it upon himself to repair the front door. The
learned judge’s findings of fact upon that were that Mr Marshall did not have
the necessary skills or money to do so. Having notified Rubypoint of the
situation and been assured that something would be done, he could not
reasonably be criticised. I entirely agree.
In the end the
learned judge carefully weighed all the evidence before her. I can find no
basis for criticising any of her findings. This was a blatant breach of the
landlord’s duty to maintain or repair the front door at 47 West Hill with the
result that Mr Marshall was burgled on three occasions in a short space of time
and seriously assaulted. That outcome was not unlikely in the circumstances. It
was readily foreseeable by the parties to the lease at all times.
While I am
grateful to Mr Dabbs, and sorry not to have heard from Mr Darren Howe, I would
dismiss the appeal.
Agreeing, Peter Gibson
LJ said: It is elementary in the law of contract that a defendant in breach
of contract is not liable for loss that is too remote and is not caused by that
breach. Whether a loss is too remote depends on whether the loss was within the
reasonable contemplation of the parties to the contract at the time of the
contract. In the present case the contract was the lease between the respective
predecessors in title to the plaintiff as tenant and the defendant as landlord.
Mr Dabbs, for the landlord, criticised the judge for failing to distinguish
between what was foreseeable at the time of the lease and subsequent events
which occurred. It seems to me that there is a good deal of force in that
criticism. However, despite Mr Dabbs’s well sustained arguments, I am not
persuaded that any of the judge’s conclusions were wrong.
It is not in
dispute that there was a breach of contract by the defendant at all material
times in failing to observe the covenant on the landlord’s part to repair,
redecorate and renew the common parts, including the outer door to the street.
The questions that, therefore, arise are: (1) whether the loss suffered by the
plaintiff through the burglaries was within the reasonable contemplation of the
parties to the lease at the time of the lease; and (2) whether the breach of
contract was causative of the loss suffered by the plaintiff.
On the first
question Mr Dabbs accepted: (a) at the commencement of the lease, in the event
of a breach by the landlord of the covenant to keep in repair the outer door,
it was reasonably foreseeable that a trespasser might thereby gain access to
the common parts; and (b) if a trespasser could gain access to the common
parts, it was reasonably foreseeable that he might commit a burglary. Mr Dabbs
went on to submit that it was also reasonably foreseeable by both landlord and
tenant that a trespasser might gain access without a breach of the covenant by
the landlord and that therefore the tenant was well advised to prepare for either
eventuality by taking reasonable security precautions for the protection of
himself and his own property. Those further submissions seem to me not to be of
great materiality on the question of remoteness. Conceivably they may be
relevant to causation. It seems to me obvious that it was, at the date of the
lease, foreseeable by the parties to the lease that if the outer door was not
kept in proper repair so that a trespasser such as a burglar might enter, loss,
through burglary of the plaintiff’s premises, was not unlikely.
On the second
question it is sufficient that the breach of contract should be a (and I
stress that indefinite article) substantial cause of the loss. But if there is
a new intervening act by a third party, that may negative any liability on the
defendant. I take the relevant principle to be that where loss results partly
from a breach of contract and partly from an intervening act of a third party,
the party in breach will be liable for the loss if, but only if, the
intervening act was reasonably foreseeable by the parties at the time of the
contract.
Mr Dabbs
stressed that the outer door was only the first line of defence. He suggested
that the plaintiff had failed to take sufficient security precautions to
protect himself in his property. He said that the judge should have asked the
question whether the level of security provided by the plaintiff tenant was
reasonable. That seems to me to approach the matter from the wrong end. The
question is whether the defendant, by his breach of contract, caused the loss.
If the plaintiff acts in such a way as to leave the original breach of contract
a matter of irrelevance to the loss, for example, if the plaintiff had left the
outer door wide open, then the defendant would not be liable for the loss which
in such a case would have been caused by the plaintiff. That is not this case.
The court has always answered questions of causation by the test of common
sense. In my judgment, by that test, the judge was entirely right to find that
the breach of contract was a substantial cause of the loss to the plaintiff.
This was not a case where the doctrine of novus actus interveniens
applied because the loss, through burglary, was foreseeable.
For those
reasons, as well as those given by Buckley J, I, too, would dismiss this
appeal.
Kennedy LJ
agreed and did not add anything.
Appeal
dismissed.
