When will an omission attract liability in negligence?

14 December 2020, Construction, Newsletter, by Kwok Kit Cheung,

In Rushbond Plc v The JS Design Partnership LLP, England’s Technology and Construction 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 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 omission, 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 with two exceptions (discussed below), neither of which applied here.

Background

An architect employed by the Defendant, carried out an inspection of the Claimant’s property (an unoccupied cinema) on behalf of a potential purchaser. The Claimant had entrusted the keys to the property to letting agents who had given them to the architect so that that he could inspect the property. There were no direct dealings between the Claimant and Defendant. The Claimant claimed that the architect left the access door unlocked for about an hour whilst inside the building and that intruders were able to gain access to the property through the unlocked door and started a fire on the property. The Claimant claimed damages of £6.5 million in respect of damage caused by the fire.

The Claimant’s case

The Claimant claimed that the Defendant owed them a common law duty of care arising from them making an unaccompanied visit to the property and having unlocked the door and disabled the alarm during the visit. The Claimant’s case was that the Defendant had breached that duty as they had failed to exercise proper care for the security of the property during the visit by failing to keep the door locked and monitored. The Claimant argued that this was not a pure omissions case because the Defendant disabled the lock and alarm whilst inside the building, thereby creating the danger and/or playing a causative part in the train of events that led to the risk of damage.  

The Defendant’s case

The  Defendant denied that it owed the Claimant a duty of care because the architect had not damaged the property, the intruders were not under the Defendant’s supervision or control and, in these circumstances, the law did not impose a positive duty on the Defendant to take care to protect the Claimant's property from harm except and unless the Defendant voluntarily assumed a responsibility to act positively so as to prevent an unidentified third party harming the property, which they had not. The Defendant argued that it was reasonably foreseeable that risk of harm to the property by an unknown third party was (marginally) increased for one hour at the relevant time, but that reasonable foreseeability of harm was inadequate to give rise to a duty of care at common law.

The Defendant therefore applied to strike out the claim and/or for summary judgment on the basis that the Statement of Case disclosed no reasonable grounds for bringing the claim, the claim had no real prospect of success and there was no other compelling reason for a trial.  

Applicable legal principles

The Court referred to the applicable legal principles as follows:

  • The courts have rejected the use of a universal test to determine the circumstances in which a duty of care will be found to exist.
  • The starting point, is for the court to consider whether the circumstances of the case in question have been found to give rise to the existence or non-existence of a duty of care in other cases.
  • In determining whether or not to extend a duty of care to novel situations, the court adopts an incremental basis by analogy with established categories of cases where a duty has been found to exist.
  • 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, but the rule is not absolute and, apart from statutory exceptions, there are two well recognised types of situations in which the common law may impose liability for a careless omission, namely:
    • Where the defendant was in a position of control over a 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;
    • Where the defendant assumes a positive responsibility to safeguard the claimant due to the relationship between them (e.g. employer and employee, doctor and patient) or where reliance is placed on the defendant’s skill and expertise (under the Hedley Byrne principle).

Issues to be determined

The Court had to consider the following issues:

(i)

whether, as the Claimant contended, this was not a pure omissions case (or at least arguably not an omissions case), because the Defendant created the danger and/or played a causative part in the train of events that led to the risk of damage;

(ii) 

if it was an omissions case, whether the Defendant assumed a positive responsibility to safeguard the Claimant's property from harm under the Hedley Byrne principle.

Court’s decision

The Court said that on analysis of the assumed facts, the harm suffered was fire damage to the Claimant's property. That harm was not caused by the Defendant but by a third party unconnected with the Defendant. The danger causing the damage was fire. The Defendant did not create the source of the fire or provide the means by which the fire started. By leaving the door unlocked, the Defendant increased the risk that an intruder might gain entry to the building. Locking the door would have prevented the third party from causing the damage and failing to lock the door amounted to a failure to prevent that harm. The architect’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. It followed, the Court said, that this case was a pure omissions case.

The Court said that the assumed facts of this case did not give rise to the imposition of an assumption of responsibility on the basis of which a duty of care might be owed. Relationships where a duty to take positive action to safeguard the property of another have been found include contractual or quasi-contractual arrangements, promises and trustsor circumstances where reliance is placed on the Defendant's skill and expertise. None of the legally significant features of the earlier authorities in which the courts have found an assumption of responsibility existed in this case. In a commercial context, the Court said, it was difficult to conceive of circumstances giving rise to an assumption of responsibility where there were no dealings between the parties.  There were no exchanges between the parties in this case which crossed the line.

The Court said that mere 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 Defendant precluded any finding of reliance by the Claimant on the Defendant, or any finding that reliance was objectively reasonable.

Accordingly, the Court concluded that Defendant did not owe a common law duty of care to the Claimant and on that basis, the Statement of Case disclosed no reasonable grounds for bringing the claim and the Claimant had no real prospect of succeeding on the claim. The Statement of Case was therefore struck out and summary judgment granted in the Defendant’s favour.

Comment

This case highlights the importance of the following which may not be clearly explained in many negligence cases in Hong Kong:-

(1) 

The starting point to determine whether there is any duty of care on the part of the defendant is for the court to consider whether the circumstances of the case in question have been found to give rise to the existence or non-existence of a duty of care in other cases. In this regard, it is a mistake to apply the leading authority in the English decision, Caparo Plc v Dickman [1990] 2 AC 605 as the single test to every situation in the modern law of negligence.

(2) 

The approaches in finding tortious liability for a positive act and for a pure omission are different. This issue was raised in So Kai Hau v YSK2 Engineering Company Limited & Ors (2018) (please see our previous article on the Court of First Instance decision) which went to the Court of Appeal. The defendant’s argument there, was however dismissed, on the ground that it was not a pure omission case and there was an assumption of responsibility on his part, as the BTM Cylinder which exploded was under his control as the Authorised Person of the building.