England’s Court of Appeal allows appeal – case was not one of pure omissions

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Authored by: KK Cheung

In our previous article we reported on the decision of England’s Technology and Construction Court in Rushbond Plc v The JS Design Partnership LLP. The Court held that the Defendant firm of architects was not liable for damage to the Claimant’s property caused by a fire started by intruders, when one of its architects (Mr Jeffrey) left the door to the property open while inspecting it for a potential purchaser. The Court held that the failure to lock the door may have allowed the intruders to enter the building, but did not provide the means by which they could start the fire and was not causative of the fire. This was a case of pure omissions, the Court said, and the common law does not generally impose liability for negligence in relation to pure omissions, including losses arising from the criminal actions of third parties, unless the case falls within two exceptions, neither of which applied here. England’s Court of Appeal has allowed Rushbond’s appeal against that decision.

Was this a case of pure omissions?

To succeed in the appeal, it was only necessary for the Appellant, Rushbond, to show that its claim was arguably not one based on pure omissions, or if it was, that it arguably fell within one of the exceptions to that rule. The Court of Appeal held that it was arguable that the claim was not one based on pure omissions, for the three reasons below.

General Principles

The Court of Appeal held that as a matter of general principles, the claim was not one based on pure omissions. It said that arguably all of the necessary ingredients of a negligence action were in place here: duty, foreseeability, breach and causation. The Respondent was a visitor at the Appellant’s property and was there with the Appellant’s permission. It was fanciful, the Court of Appeal said, to suggest that whilst the sole occupant of the property entrusted with the keys, the Respondent owed no duty of care to the Appellant to take reasonable precautions as to security.

Respondent’s involvement in relevant events

The Court of Appeal referred to the fact that “pure omissions” cases are ones where the defendant did nothing, or certainly nothing of any legal relevance to the claim. It said that the authorities make it clear that such situations are to be contrasted with those cases where the defendant is involved in a particular activity, and it was negligent in carrying out that activity that gave rise to the claim.

The Court of Appeal said that in the present case, the Respondent was involved directly in the activity which allowed the intruder to enter the property i.e. Mr Jeffrey had deactivated the alarm and left the door unlocked. On that basis, Mr Jeffrey had not just provided an opportunity for the intruder to get in, but arguably was in breach of duty because he positively made things worse by rendering a secure building insecure, at least for the duration of his visit. By doing that, Mr Jeffrey may or may not have been negligent-that was a question for another day, the Court said-but it could not unequivocally be said that he did not owe a duty of care because such duty would be based on “pure omissions”.

The Court said that negligence claims like this one are often focused on an omission, in the sense of something the defendant has failed to do. In this case, it was Mr Jeffrey’s decision not to lock the door once he and his colleagues were inside. However, that, the Court said, was part of a series of acts and omissions arising out of his visit: deactivating the alarm, not locking the door, leaving the area of the door unguarded etc.

Moreover, the Court said, this sort of semantic bickering – can it be presented as a positive act or omission? – is not what the rule in relation to “pure omissions” is all about. All negligence claims involve acts (things done that should not have been done) and/or omissions (things which ought to have been done but were not done). It does not mean that a case like this one, where the failure to do something (locking the door) was part of an activity undertaken by the tortfeaser that gave rise to loss, can be said to be a claim based on “pure omissions”.

The Court of Appeal considered that failure to lock or otherwise guard the door after entering the property was a central part of Mr Jeffrey’s activity that allowed the intruder into the property. It was arguably not a pure omission, the Court said, in the sense used in the case authorities and was instead an actionable wrong and the judge below had erred in concluding otherwise.

Keeping property secure line of authorities

The Court of Appeal held that the case fell within a recognised line of authorities concerning the duty to take reasonable steps to keep property secure and the judge below had been wrong to find that the case did not fall into that recognised category of decided cases where a relevant duty had been found.

The Court of Appeal found that the case was indistinguishable from Stansbie v Troman [1948] 2 KB 48, where a decorator did not lock the door and, as was foreseeable, a third party got into the house and stole property. The householder claimed the value of the stolen property from the decorator and the claim succeeded and was upheld on appeal.

The judge below had taken a different view because she said Stansbie and Troman was based on a contract between the decorator and householder However, the Court of Appeal said that was an incorrect reading and that it made no difference that there was a contract between the decorator and householder. What mattered, the Court said, was that the decorator was in the house as a licensee. So too, in the present case, was Mr Jeffrey.

Court of Appeal decision

Accordingly, the Court of Appeal allowed the appeal, holding that it was arguable that this was not a case of “pure omissions” and that, in any event, it was a case that fit within a line of authorities which potentially rendered the Respondent liable for the consequences of their failure to take reasonable steps to ensure that the Appellant’s property was properly protected during Mr Jeffrey’s visit.

Comments

In this case, the Defendant applied to strike out the Plaintiff’s claim and/or for summary judgment. For such applications, the burden on the plaintiff is only to show an arguable case against the defendant i.e. that it is at least arguable that it was not a case of “pure omissions”. Whilst the defendant may still maintain the defence of “pure omissions” at the trial, it would be an uphill battle, given the decision of the Court of Appeal.

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