Harrison & Ors v Technical Sign Company Ltd & Ors

Foreseeability of physical injury does not by itself establish the proximity required for a duty of care. The court must examine the defendant’s role, the purpose of the defendant’s involvement, and whether responsibility for the claimant’s safety was assumed. A surveyor who inspects premises only as a landlord’s agent in response to a tenant’s complaint about possible damage does not thereby owe a duty to passers-by. Nor does that adversarial interaction ordinarily create an assumption of responsibility to the tenant. A different result may follow where the defendant is expressly engaged to inspect for public safety. Negligence must also be assessed by reference to the scope of the instructions and the relationship between the parties.

A shop fascia collapsed onto passers-by, causing serious injuries. The injured claimants sued, among others, Active Commercial Interiors Ltd, which had remodelled the shop front, and Cluttons LLP, which had inspected the awning at the request of the landlord’s agent after the tenant complained about possible damage.

The High Court held that Active and Cluttons were liable to the claimants and were liable to indemnify Maison Blanc Ltd, the tenant. It held that Active could recover a contribution from Cluttons under section 1(1) of the Civil Liability (Contribution) Act 1978, apportioning liability 89% to Active and 11% to Cluttons. Cluttons appealed on duty of care. Active cross-appealed against the apportionment. The central issues were whether Cluttons owed duties to the passers-by or to Maison Blanc, and whether the contribution claim could succeed.

1. Appeal allowed. Cluttons owed no duty of care either to the injured passers-by or to Maison Blanc. Active’s claim for a contribution therefore failed. The issues raised by Active’s cross-appeal did not arise.
2. In relation to the passers-by, the court applied the proximity analysis in Caparo Industries Plc v Dickman [1990] 2 A.C. 605. Foreseeability of physical injury was insufficient by itself. A relationship of proximity or neighbourhood still had to exist. The relevant question depended on the circumstances in which Cluttons became involved, including its role and the purpose of its inspection.
3. Cluttons had not been instructed by Maison Blanc to inspect the shop front for public safety. It had acted as the landlord’s agent in investigating a complaint that the landlord’s works might have damaged the awning. That limited and essentially adversarial role did not give Cluttons sufficient control over, or responsibility for, the safety of passers-by. Perrett v Collins [1999] P.N.L.R. 77 was read in the context of an aircraft inspection undertaken for the safety of passengers and did not establish a duty on the materially different facts.
4. The same context defeated Maison Blanc’s claim. The parties were not in a professional adviser-and-client relationship. Maison Blanc had approached Cluttons as the landlord’s agent, and Cluttons’ comments were made in response to a complaint rather than pursuant to an undertaking to advise Maison Blanc. The request, reliance and exchange of emails did not establish an assumption of responsibility.
5. The court’s observations on negligence and causation were unnecessary to the result. Negligence had to be assessed by reference to the role and scope of the instructions. Although a competent surveyor might have noticed damage to the awning box, any negligence in that respect was not actionable by persons to whom Cluttons owed no duty. There were also strong arguments that the alleged negligence had not caused the injuries or loss, since Maison Blanc later arranged the further inspection said to be required.
6. Section 1(1) of the Civil Liability (Contribution) Act 1978 could not support a contribution where Cluttons were not liable in respect of the relevant damage.

• Court of Appeal (Civil Division): appeal by Cluttons allowed. The issues raised by Active’s cross-appeal did not arise: [2013] EWCA Civ 1569.
• High Court of Justice, Queen’s Bench Division, Birmingham District Registry: on 25 September 2012, His Honour Judge David Grant held Active and Cluttons liable to the claimants and to indemnify Maison Blanc. Active was held entitled to a contribution from Cluttons, with liability apportioned 89% to Active and 11% to Cluttons.