In Rushbond plc v The JS Design Partnership LLP [2021] EWCA Civ 1889, the Court of Appeal has overturned a decision striking out a claim in negligence arising from property damage and reviewed the authorities relating to pure omissions in negligence claims: a lack of action as distinct from positive conduct.
The common law does not impose liability for pure omissions, save where the relationship between the parties gives rise to an imposition or assumption of responsibility, or where the defendant negligently causes or permits a source of danger to be created and it is reasonably foreseeable that third parties may interfere and spark off the danger, so causing damage to neighbours. However, forseeability of harm is not, of itself, sufficient to impose a duty of care: Smith v Littlewoods [1987] AC 241.
The appellant/claimant owned a large, empty cinema in the centre of Leeds. Since it was in a vulnerable position in the city centre with direct access from numerous doors along side streets as well as the main frontage, the doors were kept permanently locked and there were security arrangements in place, including an alarm system. The appellant instructed marketing agents to find a leisure tenant for the building, and the respondent/defendant was instructed by a potential tenant to advise them on its suitability for such use.
A representative of the respondent, allegedly familiar with the security arrangements, conducted an unchaperoned visit with the potential tenant. During the visit, an intruder gained access to the building through an unlocked, possibly open, side entrance. Later that day, a fire was started in the property, and the roof and interior were destroyed. The appellant claimed damages in negligence against the respondent of £6.5m.
The judge at first instance took the view that the respondent was not responsible for the fire damage to the building. The respondent’s failure to lock the door allowed the intruder to enter but did not provide the means for the third party to start a fire and was not causative of it. This was a pure omissions case, the facts of which did not give rise to the imposition of an assumption of responsibility on the basis of which a duty of care might be owed: such cases typically include contractual or quasi-contractual arrangements, promises and trusts, or reliance being placed on the defendant’s skill and expertise.
Allowing the appeal, the Court of Appeal considered it arguable that the appellant’s claim was not a claim based on pure omissions: (i) as a matter of general principle – the respondent was a visitor to the appellant’s property and owed a duty to take reasonable care not to do or fail to do something which permitted others to burn down the property; (ii) the claim was based on the respondent’s critical involvement in the activity which gave rise to the loss and so was not a pure omissions case; and (iii) the case falls within a well-recognised line of negligence authorities where a duty has been found to be owed by a defendant in respect of the security of the claimant’s property: Stansbie v Troman [1948] 2 KB 48.
Louise Clark is a property law consultant and mediator
