Smith v Littlewoods Organisation Ltd (Maloco v Littlewoods Organisation Ltd)

An owner or occupier must take reasonable care that premises do not become a source of danger to neighbouring property. Where the alleged danger depends on deliberate wrongdoing by independent third parties, a foreseeable possibility is insufficient. The circumstances must provide a clear basis for treating the relevant damage as a real and probable consequence of the occupier’s conduct or omission.

Foreseeable trespass and ordinary vandalism do not, without more, make destructive fire reasonably probable. Knowledge or means of knowledge of an unusual hazard, earlier fire-setting, warnings or comparable exceptional circumstances may create a duty to take reasonable protective steps. The precautions required remain proportionate to the risk, their likely effectiveness, the occupier’s circumstances and the burden involved.

Smith v Littlewoods Organisation Ltd (Maloco v Littlewoods Organisation Ltd) concerned two consolidated Scottish actions arising from a deliberately started fire in a vacant cinema owned by Littlewoods. The fire destroyed or damaged neighbouring commercial premises and a church. Children and young people had repeatedly entered and vandalised the cinema, but Littlewoods had not been told about those activities or earlier attempts to start fires.

The Lord Ordinary held Littlewoods liable and awarded damages. The First Division unanimously allowed Littlewoods’ reclaiming motions, recalled the Lord Ordinary’s interlocutors and dismissed both actions. The neighbouring owners appealed to the House of Lords. The central issue was whether Littlewoods’ duty to take reasonable care for neighbouring property included a duty to maintain continuous security against intruders who might deliberately set the cinema on fire.

1. Disposition. The House of Lords unanimously dismissed both appeals and affirmed the interlocutors of the First Division. The appellants were ordered to pay Littlewoods’ costs.

2. General and specific duties. Lord Brandon held that Littlewoods owed a general duty to exercise reasonable care to ensure that the cinema did not become a source of danger to neighbouring buildings. Whether that duty encompassed precautions against unlawful entry and deliberate fire-raising depended on whether that behaviour was reasonably foreseeable in the circumstances known to Littlewoods. Littlewoods had received no warning from neighbours, the police or the fire brigade and did not know about the intruders’ activities or the earlier attempts to light fires.

3. Probability and reasonable care. Lord Mackay, whose speech Lord Keith accepted and with whose evaluation Lord Griffiths substantially agreed, held that independent human agency did not alter the basic inquiry into the reasonable and probable consequences of an act or omission. “Probable” identified a real risk rather than a mere possibility; it did not require proof that the event was more likely than not. Because human conduct may be unpredictable, however, a clear factual basis was required before deliberate wrongdoing could be treated as a probable consequence. Foreseeable entry and commonplace vandalism did not establish that the cinema would probably be deliberately set alight.

4. Risk and burden. Per Lord Griffiths and Lord Mackay, the standard remained reasonable care in all the circumstances, consistently with Bolton v Stone [1951] AC 850 and Goldman v Hargrave [1967] 1 AC 645. The only precaution likely to have prevented entry was a 24-hour guard. Imposing that burden upon the occupiers of ordinary vacant premises required exceptional circumstances, which were absent. The cinema contained no inherently dangerous material and was not shown to be an unusual fire hazard.

5. Lord Goff’s broader analysis. Lord Goff, with Lord Keith agreeing, reasoned that the common law imposes no general duty to prevent deliberate wrongdoing by third parties merely because it is foreseeable. Liability may nevertheless arise from an assumption of responsibility, control over the wrongdoer, nuisance, the negligent creation or permission of a source of danger, or knowledge or means of knowledge that trespassers have created a hazard. An occupier who knows of such a hazard may have to take the reasonable steps open to that occupier. Neither basis applied because the cinema was not an unusual source of danger and Littlewoods lacked knowledge or means of knowledge of any fire risk.

1. House of Lords: In Smith v Littlewoods Organisation Ltd (Maloco v Littlewoods Organisation Ltd) [1987] AC 241, the House unanimously dismissed the appeals, affirmed the First Division’s interlocutors and awarded Littlewoods its costs.
2. First Division of the Court of Session: The court unanimously allowed Littlewoods’ reclaiming motions, recalled the Lord Ordinary’s interlocutors and dismissed both actions.
3. Outer House of the Court of Session: The Lord Ordinary held Littlewoods liable for the fire damage and awarded damages to both sets of pursuers. The third-party claim against the Chief Constable was rejected.