No duty of care found in a pure omission scenario – Rushbond Plc v The J S Design Partnership LLP  EWHC 1982 (TCC)Nathan Davis
This comment notes the recent and interesting decision of the High Court in Rushbond Plc v The J S Design Partnership LLP  EWHC 1982 (TCC) which concerned whether a duty of care was owed from damage caused by a third party.
The facts were largely undisputed. The Claimant was the proprietary owner of an unoccupied cinema (it appears which they were attempting to sell). The property had security measures in place, including an alarm system and lockable doors. An architect, employed by the Defendant, accompanied by a structural engineer and quantity surveyor visited the property in 2014 after they were provided with the key and code by the relevant letting agent.
They were at the property for about an hour, during which time the door had not been re-locked. They subsequently left the property, having locked the door and re-activated the alarm system. Some hours later a fire broke out at the property.
It was the Claimant’s case that the fire had not been caused by the Defendant but that when they had left the door unlocked an intruder had gained access and subsequently set the fire. They pursed the Defendant for breach of a common law duty which was said to relate to the security of the property when the visit was made.
The Defendant denied that it owed any duty of care to the Claimant. It was accepted by the parties that the Defendant’s employee had not damaged the property and that the person who had was not under the control or supervision of the Defendant. However, the parties disagreed as to whether there was an assumption of responsibility giving rise to a duty of care.
The Defendant applied to strike out the claim and/or for summary judgment on the basis that no duty of care was owed to the Claimant for damage that was caused by an unknown third party whom the Defendant had no responsibility for.
The applicable law
The following basic principles could be noted from the caselaw [25-26]:
- There is no universal test to determine whether a duty of care will be found to exist;
- The starting point is consider whether the circumstances of the case in question have previously been found to give rise to the existence of a duty of care;
- An incremental approach based upon analogy is used to decide whether a duty of care should be extended to novel situations;
- The general rule is that the common law does not impose liability for negligence in relation to pure omissions, including loss arising through the criminal actions of a third party.
However, there are exceptions to that rule, such as where (see Michael v Chief Constable of South Wales Police  UKSC 2 at [98-99]):
- The Defendant is 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 – this did not apply in the instant case;
- The Defendant assumes a positive responsibility to safeguard the Claimant under the Hedley Byrne principle (i.e. due to the relationship between the parties).
The Court firstly held, contrary to the Claimant’s submissions, that this was a pure omissions case and the Defendant had not created the danger and/or played a causative part: the Defendant’s 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.’
Secondly, the Court held that this was not a case where an assumption of responsibility could be imposed. This had previously been limited to cases where there had been a contractual or quasi-contractual arrangement in place, or in circumstances where reliance had been placed on the Defendant’s skill and expertise. In this case none of those features were present and it was accepted that there had been no dealings between the parties.
The Claimant submitted that the possession of the key by the Defendant was significant and that this, of itself, amounted to a sufficient level of control over the source of the danger which could give rise to an assumption of responsibility. This argument was given short shrift:
‘[m]ere possession of the key during an inspection of the property was not sufficient to give the Defendant responsibility for safeguarding the property from fire damage. The absence of any dealings between the Claimant and the Defendant preclude any finding of reliance by the Claimant on the Defendant, or any finding that reliance was objectively reasonable.’
The Court, therefore, held that this was a pure omissions case, none of the exceptions were established, and thus no duty of care was owed in law. The claim was struck out and summary judgment given in favour of the Defendant.
The case provides an interesting and factual example of a situation which does not give rise to a duty of care. The failure of the Claimant to persuade the Court that any of the exceptions to the general rule (see above) were established meant that the Court was bound to find in law that no duty of care was owed by the Defendant.
The finding that this was not a case where the Defendant had created the risk deserves particular attention. As per Lord Goff in Smith v Littlewoods Organisation Ltd  1 AC 241, the focus is on whether it can be said that the Defendant had “caused or permitted the creation of a source of danger”. In the instant case, the danger was the fire and, therefore, it could not be said that the Defendant had caused or permitted the creation of that, even if it could be said that locking the door would have prevented the damage.
Nathan is a common law pupil who is currently undertaking his second six.