Abeer Mohammad Shamsan v 44-49 Lowndes Square Management Company Limited

In a novel duty-of-care case, the court must identify any analogous established duty and develop the law incrementally. The Caparo factors remain relevant where in issue, but they do not provide a free-standing three-stage route to liability. Assumption of responsibility is an analytical tool for assessing proximity and fairness. It cannot be inferred merely from a contractual scheme. A company required to appoint an independent contractor to provide building services is not liable for the contractor’s negligence simply because it arranged that appointment. Where there is no relevant representation, direct conduct, control, vicarious liability or non-delegable duty, a novel duty imposing such liability lacks a sufficient basis. Summary judgment may determine the issue where no further facts could realistically supply that basis.

The appellant was a tenant of a flat in a managed block. After porters negligently released keys, burglars entered the flat and stole property. She sued the respondent management company in tort, although she had no contract with it. Under the relevant lease structure, the respondent was required to appoint managing agents, and the porters were supplied by an independent contractor.

The High Court granted summary judgment for the respondent and dismissed the tort claim. Permission to appeal was granted on grounds concerning the contractual structure, estoppel, duty of care and the timing of the summary decision; permission was refused on the bailment ground. The central issue was whether the respondent owed a novel duty of care for the negligence of the independent contractor.

Appeal dismissed unanimously. The summary judgment for Lowndes stood. Edis LJ gave the leading judgment, with Nugee and Underhill LJJ agreeing.

1. For present purposes, the court assumed that the porters had negligently mishandled the appellant’s keys. Their employers would be vicariously liable. Lowndes was not vicariously liable, and no non-delegable duty was alleged. Farebrother was plainly an independent contractor, the porters were its employees, and there was no pleaded evidence that Lowndes controlled their work.
2. The proposed duty was novel. The proper method was incremental development by analogy with established categories, with the [2018] UKSC 4 approach explained in [2023] EWCA Civ 140. The [1990] 2 AC 605 factors could assist where relevant, but the court should not begin with a rigid three-stage test.
3. Assumption of responsibility was not sustainable. There was no representation or other direct act by Lowndes. The only possible source was the contractual scheme. That scheme required Lowndes to engage Farebrother, contemplated that Farebrother would provide and supervise porterage, and contained no contract with the appellant. It did not support an assumption of responsibility for the porters’ negligence. No authority justified imposing such a duty on a company in Lowndes’s position.
4. The court declined to uphold the judgment on a separate general principle that a tort duty is necessarily invalid if inconsistent with a contractual structure. The contractual context was relevant, but care was required before transposing considerations arising in construction-contract cases into a general rule.
5. Grounds 1 and 2 succeeded. The appellant was not bound by the relevant exclusion clauses as an estoppel or privy. The provisions were not tenant’s covenants, did not affect Senora’s interest in the land, and the appellant was not an assignee. That did not alter the result because ground 3 failed.
6. It was reasonable to decide the duty issue summarily under Part 24 of the Civil Procedure Rules 1998. Ground 5 therefore failed. The bailment claim was outside the permission to appeal and, in any event, the keys had been bailed to the porters rather than Lowndes.

• Court of Appeal (Civil Division): Accepted grounds 1 and 2 concerning estoppel and privy, but rejected the duty-of-care ground and dismissed the appeal. The summary judgment remained in force.
• High Court of Justice, King’s Bench Division: Mr Anthony Metzer KC, sitting as a Deputy High Court Judge, granted summary judgment for the respondent and dismissed the tort and bailment claims.