Rushbond PLC v The JS Design Partnership LLP

A negligence claim does not concern a pure omission merely because it includes a failure to take a precaution. The court must examine the defendant’s activity as a whole and ask whether the defendant caused harm or made matters worse.

A person permitted to enter another’s property may arguably owe a duty to take reasonable security precautions where that person disables existing protections and leaves the property vulnerable to foreseeable intrusion. The duty may extend to foreseeable property damage caused after entry. If the damage falls within the scope of the foreseeable risk, its precise manner need not have been foreseeable.

An architect visiting a vacant cinema on behalf of a prospective occupier was given its keys and alarm code. It was alleged that he disabled the alarm, unlocked the only entrance in use and left that door unsecured while inspecting distant parts of the building. An intruder allegedly entered and later started a fire, causing damage valued at about £6.5 million.

O’Farrell J struck out the owner’s negligence claim in [2020] EWHC 1982 (TCC). She held that it concerned a pure omission and that no exception based on an assumption of responsibility applied. The owner appealed. The central issue was whether the alleged duty of care was at least arguable.

1. Appeal allowed. Coulson LJ, with whom Stuart-Smith LJ and Asplin LJ agreed, held that it was arguable that the claim did not concern a pure omission. The claim therefore should not have been struck out.

2. The distinction in omissions cases concerns causing harm or making matters worse, as opposed to failing to confer a benefit or protect against a danger for which the defendant bears no responsibility. It cannot be resolved by isolating one failure from the activity in which it occurred. Here the architect had entered at his own request, disabled the alarm, unlocked the door, left it unsecured and moved away from it. On the pleaded facts, that combination of acts and omissions rendered a secure building insecure and enabled the intruder to enter.

3. The claim fell within the recognised line of authority exemplified by Stansbie v Troman [1948] 2 K.B. 48. A person carrying out an activity inside another’s property may owe a duty to take reasonable care to keep it secure against foreseeable intrusion. The contractual relationship in Stansbie was not essential; responsibility could also arise where the defendant entered as a licensee. The architect’s continued presence somewhere in the large, dark building did not materially distinguish the case.

4. Smith v Littlewoods [1987] 1 A.C. 241 and P. Perl (Exporters) Ltd v Camden London Borough Council [1984] 1 Q.B. 343 were distinguishable. Those cases concerned inactive owners whose properties were misused to damage neighbouring premises. This claim concerned a visitor who allegedly made the claimant’s own property insecure while undertaking an authorised activity.

5. The arguable security duty was not necessarily confined to preventing entry. It could extend to foreseeable property damage caused by an intruder after entry. Where the damage falls within the scope of the risk created by the alleged negligence, the precise manner of its occurrence need not have been foreseeable.

6. It remained open at trial to argue, if the facts ultimately disclosed a pure omission, that the creation-of-danger or assumption-of-responsibility exceptions applied. The court expressed no concluded view on those alternatives or on breach and causation.

1. Court of Appeal (Civil Division): In [2021] EWCA Civ 1889, unanimously allowed the appeal and set aside the strike-out of the negligence claim.
2. Technology and Construction Court: O’Farrell J held in [2020] EWHC 1982 (TCC) that the case concerned a pure omission, that no relevant exception applied and that no duty of care arose. The claim was struck out.