CONSTRUCTION JOURNAL

Burning cinemas: omissions and the duty of care

A recent case provides an example of the issues that can arise when damage occurs as part of a property inspection, and the type of arguments that can ensue

Author:

Shy Jackson

07 October 2020

Legal

The decision in Rushbond PLC v The J S Design Partnership [2020] EWHC 1982 offers an example of the extent of the duty of care owed by an inspecting party to a third party.

In 2014 an architect, a structural engineer and a quantity surveyor inspected a property – an unoccupied cinema in Leeds known as The Majestic – on behalf of a potential purchaser. It appears that the architect left the access door open for an hour while the inspection took place. During that time, intruders gained entry and started a fire, resulting in damage amounting to £6.5m. Unsurprisingly, the property owner tried to claim this loss from the architect.

The property owner did not have a contract with the architect and argued that the architect owed a duty of care in tort as a result of making an unaccompanied visit and unlocking the door and disabling the alarm – despite locking the door and reactivating the alarm on leaving. The architect argued that the damage was caused by a third party and that there was no positive duty in law to take steps to protect the property from harm unless there was some voluntary assumption of responsibility, which was not the case here. The property owner replied by arguing that the disabling of the alarm and unlocking the property did mean an assumption of responsibility.

The architect accepted that there was a higher risk of harm to the property by a third party during the visit, but argued that it was not reasonably foreseeable that there would be property damage by fire caused by an intruder who gained entry and remained concealed and undetected when the alarm was reactivated.

“Without a contractual relationship, claims based on a tortious duty can be difficult”

The Court's decision

The architect issued an application for summary judgment to dismiss the claim on the basis that there were no legal grounds for making the claim. The judge looked at the legal authorities on the duty of care, including the House of Lords decision in Smith v Littlewoods [1987] 1 AC 241, which demonstrated that a party is not liable in negligence for the wrongful acts of a third part. This was in similar circumstances, where a cinema burned down when a third party broke in – and caused damage to a neighbouring property. The judge also observed that whether or not there was an assumption of responsibility that could give rise to liability was an objective test based on what had been said or done.

The judge found that the damage was caused by fire and the defendant did not create the fire nor provide the means for it to start. They acknowledged that by leaving the door unlocked the defendant did increase the risk of an intruder, and failing to lock the door was a failure to prevent the harm caused by the intruder. However, that failure did not cause the fire – the issue of the case was therefore whether there was a breach of a duty of care due to an omission.

The judge went on to hold that there was no assumption of responsibility. A duty to take positive action to safeguard a property was typically based on a contractual or quasi contractual arrangement. In this case the architect, acting for a potential purchaser, had no such relationship with the property owner. Being given the key to the property did not mean the architect had to guard the property from fire damage.

The facts of this case are unusual and it is difficult to see how any party could have foreseen that a 1 hour visit would result in a fire causing substantial damage. Nonetheless, it is a reminder that, without a contractual relationship, claims based on a tortious duty can be difficult. The other lesson, of course, is that when inspecting an empty site, it is best to ensure it remains inaccessible.