Rev. F. T. Smith and others (Appellants)
v.
Littlewoods Organisation Limited (Respondents)
(Scotland)
Maloco (Appellant)
v.
Littlewoods Organisation Limited (Respondents)
(Scotland)
(Consolidated appeals)
JUDGMENT
Die Jovis 5° Februarii 1987
Upon Report from the Appellate Committee to whom was referred
the Cause Rev. F. T. Smith and others against Littlewoods
Organisation Limited and Maloco against Littlewoods Organisation
Limited (Consolidated Appeals), That the Committee had heard
Counsel on Monday the 13th and Tuesday the 14th days of October 1986
upon the Petitions and Appeals of The Reverend Frank T. Smith,
William G. Kerr and Archibald D. Crawford, of St. Paul’s Church of
Scotland, Canmore Street, Dunfermline, and of Angelo Maloco,
residing at 28 Garvock Hill, Dunfermline, Fife, praying that the
matter of the Interlocutors set forth in the Schedule thereto,
namely Interlocutors of the First Division of the Court of Session
in Scotland of the 19th of November 1985, might be reviewed before
Her Majesty the Queen in Her Court of Parliament and that the said
Interlocutors might be reversed, varied or altered or that the
Petitioners might have such other relief in the premises as to Her
Majesty the Queen in Her Court of Parliament might seem meet (which
said Appeals were by an Order of the House of 19th February 1986
consolidated); as upon the case of the Littlewoods Organisation
Limited lodged in answer to the said Appeals; and due consideration
had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal
in the Court of Parliament of Her Majesty the Queen assembled, That
the said Interlocutors of the 19th day of November 1985 complained
of in the said Appeals be, and the same are hereby, Affirmed and
that the said Petitions and Appeals be, and the same are hereby,
dismissed this House: And it is further Ordered, That the Appellants
do pay or cause to be paid to the said Respondents the Costs
incurred by them in respect of the said Appeals, the amount thereof
to be certified by the Clerk of the Parliaments if not agreed
between the parties: And it is also further Ordered, That unless the
Costs certified as aforesaid shall be paid to the Respondents
entitled to the same within one calendar month from the date of the
Certificate thereof the Cause shall be, and the same is hereby,
remitted back to the Court of Session in Scotland or to the Judge
acting as Vacation Judge to issue such Summary Process or Diligence
for the recovery of such Costs as shall be lawful and necessary.
Cler: Parliamentor:
Judgment: 5.2.87
HOUSE OF LORDS
REV. F. T. SMITH AND OTHERS
(APPELLANTS)
%*
“
LITTLEWOODS ORGANISATION LIMITED
(RESPONDENTS) (SCOTLAND)
MALOCO
(APPELLANT)
v.
LITTLEWOODS ORGANISATION LIMITED
(RESPONDENTS) (SCOTLAND)
(CONSOLIDATED APPEALS)
Lord Keith of Kinkel
Lord Brandon of Oakbrook
Lord Griffiths
Lord Mackay of Clashfern
Lord Goff of Chieveley
LORD KEITH OF KINKEL
My Lords,
I have had the advantage of considering in draft the
speeches to be delivered by my noble and learned friends Lord
Mackay of Clashfern and Lord Goff of Chieveley. I agree with
them, and for the reasons they give would dismiss these appeals.
LORD BRANDON OF OAKBROOK
My Lords,
It is axiomatic that the question whether there has been
negligence in any given case must depend on the particular
circumstances of that case. That being so, I do not think that
these appeals can in the end be determined by reference to other
reported cases in which the particular circumstances were
different, even though some degree of analogy between such other
cases and the present one can legitimately be drawn. Nor do I
think that it is possible, however helpful it might otherwise be, to
– 1 –
lay down any general principle designed to apply to all cases in
which the negligence alleged against a person involves the
unauthorised acts of independent third parties on premises owned
or occupied by that person.
The particular facts of the present case appear to me to
raise two, and only two, questions, on the answers to which the
determination of the appeals depends.
The first question is what was the general duty owed by
Littlewoods, as owners and occupiers of the disused cinema, to the
appellants, as owners or occupiers of other buildings near to the
cinema. The answer to that question is, in my view, that
Littlewoods owed to the appellants a duty to exercise reasonable
care to ensure that the cinema was not, and did not become, a
source of danger to neighbouring buildings owned or occupied by
the appellants.
The second question is whether that general duty
encompassed a specific duty to exercise reasonable care to prevent
young persons obtaining unlawful access to the cinema, and, having
done so, unlawfully setting it on fire. The answer to that
question, in accordance with general principles governing alike the
law of delict in Scotland and the law of negligence in England,
must depend on whether the occurrence of such behaviour was
reasonably foreseeable by Littlewoods. It should have been
reasonably foreseeable by Littlewoods if they had known of the
activities of young persons observed by certain individuals in the
locality. But they did not know of such activities because the
individuals concerned did not inform either Littlewoods or the
police of them, nor did the police themselves observe them. In
the absence of information about such activities, either from the
individuals referred to or from the police, I am of opinion that the
occurrence of the behaviour in question was not reasonably
foreseeable by Littlewoods. I conclude, therefore, that the general
duty of care owed by Littlewoods to the appellants did not
encompass the specific duty referred to above.
For these reasons I would dismiss the appeals.
LORD GRIFFITHS
My Lords,
I regard these appeals as turning upon the evaluation and
application of the particular facts of this case to a well
established duty and standard of care. I agree so fully with the
statement and evaluation of the facts appearing in the speech of
my noble and learned friend, Lord Mackay of Clashfern, that I can
state my own reasons for dismissing these appeals very shortly.
The duty of care owed by Littlewoods was to take
reasonable care that the condition of the premises they occupied
was not a source of danger to neighbouring property.
– 2 –
The standard of care required of them was that stated in
general terms by Lord Radcliffe in Bolton v. Stone [1951] A.C.
850, 868 and expanded in more particularity by Lord Wilberforce in
Goldman v. Hargrave [1967] 1 AC 645 when dealing with a fire
upon premises caused by an outside agency. I refrain from citing
these passages as both appear in the speech of my noble and
learned friend, Lord Mackay of Clashfern.
Listening to the seductive way in which Mr. MacLean
developed his argument on the facts step-by-step, as described by
Lord Mackay, I was reminded of the fable of the prince who lost
his kingdom but for the want of a nail for the shoe of his horse.
A series of foreseeable possibilities were added one to another
and, hey presto, there emerged at the end the probability of a fire
against which Littlewoods should have guarded. But, my Lords,
that is not the common sense of this matter.
The fire in this case was caused by the criminal activity of
third parties upon Littlewoods’ premises. I do not say that there
will never be circumstances in which the law will require an
occupier of premises to take special precautions against such a
contingency but they would surely have to be extreme indeed. It
is common ground that only a 24-hour guard on these premises
would have been likely to prevent this fire, and even that cannot
be certain, such is the determination and ingenuity of young
vandals.
There was nothing of an inherently dangerous nature stored
in the premises, nor can I regard an empty cinema stripped of its
equipment as likely to be any more alluring to vandals than any
other recently vacated premises in the centre of a town. No
message was received by Littlewoods from the local police, fire
brigade or any neighbour that vandals were creating any danger on
the premises. In short, so far as Littlewoods knew, there was
nothing significantly different about these empty premises from the
tens of thousands of such premises up and down the country.
People do not mount 24-hour guards on empty properties and the
law would impose an intolerable burden if it required them to do
so save in the most exceptional circumstances. I find no such
exceptional circumstances in this case and I would accordingly
dismiss the appeals.
I doubt myself if any search will reveal a touchstone that
can be applied as a universal test to decide when an occupier is
to be held liable for a danger created on his property by the act
of a trespasser for whom he is not responsible. I agree that mere
foreseeability of damage is certainly not a sufficient basis to
found liability. But with this warning I doubt that more can be
done than to leave it to the good sense of the judges to apply
realistic standards in conformity with generally accepted patterns
of behaviour to determine whether in the particular circumstances
of a given case there has been a breach of duty sounding in
negligence.
– 3 –
LORD MACKAY OF CLASHFERN
My Lords,
The defenders and respondents in these consolidated appeals,
to whom I shall refer as “Littlewoods,” purchased the Regal
Cinema in the centre of Dunfermline from its previous owners
with entry on 31 May 1976. Littlewoods’ intention was to
demolish the cinema within a short time and to replace it by a
supermarket. On 5 July 1976, in consequence of a fire which
began in the cinema, a cafe and billiard saloon which lay close to
the cinema on the west known as the Cafe Maloco was seriously
damaged and St. Paul’s Church which lay also to the west but at
a slightly greater distance from the cinema was so substantially
damaged that it had to be demolished. Dunfermline lies within
the area of the Fife constabulary. The issues in both actions are
the same and they have been heard together at every stage. The
owners of the affected properties to whom I shall refer as “the
appellants” claimed against Littlewoods for the damage done to
their properties alleging that the damage was caused by negligence
on the part of Littlewoods. Littlewoods, in turn, claimed that if
they were at fault the Chief Constable of the Fife Constabulary
or his officers were also at fault and he should be held liable to
make a contribution to the award made against Littlewoods. The
Lord Ordinary held that the claims had been established against
Littlewoods and pronounced awards in favour of both owners. He
found that Littlewoods’ case against the Chief Constable had not
been established. Littlewoods accepted the decision relating to the
Chief Constable but reclaimed against the awards which had been
made against them. The First Division of the Inner House of the
Court of Session 1986 S.L.T. 272 unanimously allowed the
reclaiming motions and recalled the Lord Ordinary’s interlocutors.
The First Division also dealt with matters relating to the size of
the award made in favour of the owners of St. Paul’s Church.
The appellants have now appealed to this House and have
argued that the Lord Ordinary’s interlocutors should be restored,
subject to alteration in the amount awarded in favour of the
owners of St. Paul’s Church. No question relating to the size of
the awards remains outstanding between the parties; they are
agreed on the amounts to be awarded if the appeals succeed.
The cinema comprised a substantial brick-built auditorium
with a balcony at the north end and a flat timber and felt
covered roof on a steel frame. It was reached from the High
Street by a lengthy foyer partly of similar construction and
otherwise traditionally stone-built and slated, three storeys in
height. The main building of the cinema was set back a
considerable distance from the High Street. To the east of the
cinema entrance in the High Street there was a passageway known
as Macpherson’s Close which ran down the length towards the
south on the east side of the main building. Immediately to the
south of the main building lay the car park to which entry was
gained from Canmore Street lying to the south of the property.
Macpherson’s Close was regularly used by the public as a short cut
from Canmore Street to the High Street. Another close known as
the West Close ran from the north side of the car park round the
west side of the main building and then at the north end of the
main building turned eastwards to join Macpherson’s Close. This
– 4 –
last section of the West Close passed under the section of the
cinema which connected its main building with the front entrance
in the High Street. On the west side of West Close was Cafe
Maloco and to the south west of the cinema and beyond certain
properties lying immediately to the west of the West Close lay St.
Paul’s Church, which was a Victorian Gothic building with a small
wooden turret. The main building of the cinema had a number of
exit or fire doors with locking bars designed to be opened only
from the inside which were set in the walls of the cinema.
The last showing of a film in the cinema took place on 29
May 1976. Although legal entry was given on 31 May 1976 the
keys were not handed over to Littlewoods until about 14 June.
During that period the previous owners employed contractors to
remove fittings and equipment from the cinema which were worth
taking away but which were of no interest to Littlewoods. Before
these contractors had finished their task contractors employed by
Littlewoods arrived at the premises to make certain site
investigations and to do some preliminary work on foundations.
Littlewoods’ contractors were present and working for about three
weeks; the first two were spent in the area of the cinema car
park and thereafter they spent about four days working inside the
premises. From about the end of the third week in June 1976 the
cinema remained empty and unattended by any persons employed
by or giving services to Littlewoods.
The evidence established that children began to overcome
the security of the cinema building by breaking into it in one way
or another in the period of about four days when Littlewoods’
contractors were doing preliminary work inside the premises during
or towards the end of the third week in June 1976. Although
these contractors locked and secured the premises when they
finished work each night, they discovered on their return in the
morning clear signs that the premises had been forcibly entered.
Some of the fire doors had been forced open from inside and the
locking bars had been broken. The contractors then had to secure
the doors which had been so affected by tying them with rope to
the stage. When they finished their work they left the premises
as secure as they could make them. Thereafter the security of
the premises was again overcome by children and young persons
and children and young persons resorted to the premises with
increasing regularity for play, horseplay and the pleasure of making
a mess and breaking whatever they could find to break. The Lord
Ordinary held that it was amply established that by the first few
days of July 1976 anyone with half an eye who made use of
Macpherson’s Close could have seen that the main building of the
cinema was no longer lockfast and was being regularly entered by
unauthorised persons. Paper and debris were scattered about the
auditorium and in Macpherson’s Close outside the building debris
increased, consisting of bricks, glass and old films. During the
time that the Littlewoods’ contractors were working inside the
main building one of the contractors’ employees saw lengths of old
cinema film lying in Macpherson’s Close and noticed signs of
someone having attempted to set fire to them. The type of film
used in the cinema was non-inflammable and no fire had occurred.
About the end of June Mr. Scott, who was the beadle of St. Paul’s
Church and of another church in the vicinity, saw signs of
someone having tried to light a fire inside the building. His
attention had been attracted because some children had run out of
– 5 –
the building as he approached. When he went inside he found that
the carpet, where oil had been spilled on it, was burning. He put
it out very easily by stamping on it and told Mr. Kerr, the session
clerk of St. Paul’s, about it. Neither Mr. Scott nor anyone else
informed the police or Littlewoods about any of these matters.
As the Lord Ordinary put it:
“Nevertheless, in spite of these obvious signs of the building
having been violated by unauthorised persons, no one saw fit
to report the matter to the police or to attempt to bring it
to the attention of the defenders or their representatives.”
A notice at the front of the cinema contained the necessary
particulars of Littlewoods.
On 5 July 1976 about 6.30 p.m. a large ceramic sink from a
toilet on the top floor of the main building of the cinema landed
on the roof of the billiard saloon in Cafe Maloco. It was thrown
from a window on the west side of the cinema by boys of 13 or
14 years of age. The police were called and detained two boys.
Between 8.00 and 9.00 p.m. on the same day a passer-by
noticed three teenagers come out of Macpherson’s Close and soon
after she saw smoke coming from the close. The police and the
fire brigade were called but the fire which started in the south-
west corner of the balcony soon engulfed the whole building. The
efforts of the fire brigade were impeded by inability to get a
supply of water from the fire hoses.
The Lord Ordinary concluded, and there was no challenge
the correctness of his conclusion, that the fire which started on 5
July 1976 was deliberately started by children or teenagers and
that the teenagers that the passer-by saw emerging from
Macpherson’s Close shortly before the smoke started to come out
were probably responsible. Apart from the contractors employed
by Littlewoods, to whom I have referred, the only person employed
by Littlewoods who gave evidence was a member of the
architectural department who was responsible for the design and
supervision of the construction of buildings for the company. He
visited the cinema about the middle of June and according to his
evidence it was secure at that time.
The claims are based on the allegation that Littlewoods, as
owners and occupiers of the Regal cinema, had a duty to take
reasonable care for the safety of premises adjoining; that they
knew or ought to have known that a disused cinema would be a
ready target for vandals; and that they knew or ought to have
known that their cinema was, in fact, the subject of extensive
vandalism and that if they did not take steps to prevent the entry
of vandals they would cause damage not only to their own
property, whether by fire or otherwise, but further such fire might
spread and cause damage to adjoining properties. In these
circumstances, it was claimed that Littlewoods had a duty to take
reasonable care to keep and maintain the premises lockfast, to
cause frequent and regular inspection to be made and to lock and
board up any doors and windows found to be open or smashed and
to employ a caretaker to watch over the premises and to prevent
the entry of vandals. In the course of the hearing before your
Lordships counsel for the appellants accepted that, in the light of
– 6 –
the evidence, the only precaution that was likely to be effective
in preventing the entry of vandals was to arrange for a 24-hour
watch to be maintained on the premises. Littlewoods, while
accepting that as owners and occupiers of the premises they had a
duty to take reasonable care for the safety of premises adjoining,
strenuously denied that they owed the duties on which these claims
are founded.
The Lord Ordinary, after examining the authorities,
concluded that whether such duties were owed by Littlewoods or
not depended on the answer to the question
“bearing in mind that [Littlewoods] had no control over the
children and teenagers, was it reasonably foreseeable by
[Littlewoods] that, by failing to keep the cinema lockfast
and to inspect it regularly during the last half of June and
the first few days of July 1976, children and young persons
would not only enter it, but start a fire?”
He considered that it was appropriate that he should treat this as
a jury question and try to answer it as a jury would. He says:
“In the absence of any evidence about the lighting of fires,
it would have been difficult to say that it was ‘very likely’
that children and young persons breaking into these premises
would start a fire, but in the present instance there is
evidence that on two occasions shortly before 5 July 1976
witnesses saw signs of someone having tried to start a fire.
… I accept that there is a very narrow dividing line in
the circumstances of this case between bare foreseeability
and reasonable foreseeability, but having applied my mind to
that problem I have reached the conclusion that the lighting
of a fire in the premises by children or teenagers was in
the circumstances reasonably foreseeable.”
This conclusion he reached with some hesitation.
Before the First Division it was accepted by the appellants
that on the evidence, Littlewoods had no knowledge of the
attempts to start fires to which the Lord Ordinary referred in the
passage I have quoted and that, accordingly, in considering whether
Littlewoods were bound reasonably to foresee that as a
consequence of their inaction a fire would be started in their
building and not only engulf it but cause damage to buildings
nearby, these required to be left out of account unless it could be
said that they had a duty to know of them. If they had not such
a duty the Lord Ordinary’s decision on this crucial matter was
open for review by the judges of the First Division. The judges of
the First Division unanimously concluded that the question was at
large for their consideration and that in the circumstances it had
not been shown that it was reasonably to be foreseen by
Littlewoods that if they took no steps to discourage widespread
use of the cinema by youngsters, including vandals, one or more of
them, or some other intruder, would be likely deliberately to set
fire to the building or deliberately to set such a fire in such a
place as would be likely to engulf the building.
Mr. MacLean for the appellants in his very persuasive
submissions to your Lordships suggested that this crucial question
– 7 –
should be approached in stages. First he submitted that by reason
of the particular features of this building it was reasonably
foreseeable by Littlewoods that young persons were likely to be
attracted to the building and would attempt to overcome such
security as there was and would attempt to gain entry. The
second submission was that it was reasonably foreseeable that if
the building was insecure and remained insecure it would be
entered. Further, it was reasonably foreseeable that a proportion
of such young persons would be intent on causing damage within
the building which might have an effect on adjoining property.
The fourth step in the argument was that it was reasonably
foreseeable that such damage would include damage by fire which,
being unpredictable, was likely to take hold of the fabric of the
building. And the final step in the logical progression was that it
was reasonably foreseeable that if the fire took hold of the
building it would engulf the building and, since the building was
large, the fire would readily spread to adjoining properties.
In support of these submissions and particularly the
submission that it was reasonably foreseeable that such damage
would include damage by fire, Mr. MacLean referred to three
decisions in which conduct of this kind had come to the notice of
the courts: Evans v. Glasgow District Council, 1978 S.L.T. 17, in
which it was alleged that one of the forms vandalism had taken in
that case was that ignited material had been dropped through
damaged floors of a flat above the pursuer’s premises with the
consequence that the contents of these premises were destroyed
almost entirely; Carrick Furniture House Ltd v. Paterson, 1978
S.L.T. (Notes) 48, in which it was alleged that persons had entered
and deliberately set fire to the premises in question; and thirdly,
Thomas Graham & Co. Ltd, v. Church of Scotland General
Trustees, 1982 S.L.T. (Sh.Ct.) 26, in which vandals had entered a
church and set it on fire. Mr. MacLean also referred to the
Criminal Justice (Scotland) Act 1980, section 78, in which while
defining the statutory offence of vandalism as committed by “any
person who, without reasonable excuse, wilfully or recklessly
destroys or damages any property belonging to another” Parliament
excepted from that offence what would constitute the offence of
wilful fire-raising. From that statutory provision, and these
instances, Mr. MacLean argued that it was right that the court
should take notice that one of the forms in which persons wilfully
or recklessly destroy or damage property belonging to others is by
wilful fire-raising.
He further referred to Hughes v. Lord Advocate, 1963
S.C.(H.L.) 31 as demonstrating the unpredictability of children’s
behaviour as a factor to be taken into account in dealing with a
question such as is raised here.
Mr. MacLean submitted further, and anticipating what might
be urged against him, that although the actions that caused the
fire were those of vandals over whom Littlewoods had no control,
his case was founded on the need that arose in consequence of the
likely results of allowing vandals into the building to take
precautions to keep them out. The test of whether such
precautions should be taken was, in Mr. MacLean’s submission,
whether it was reasonably foreseeable by Littlewoods that if they
did not take these precautions there was a substantial risk that
the neighbouring properties would be damaged. He referred
– 8 –
particularly to Dorset Yacht Co. Ltd, v. Home Office [1970] A.C.
1004 and to the speech of Lord Reid, at p. 1027, where, referring
to the well known passage in Lord Atkin’s speech in Donoghue v.
Stevenson [1932] AC 562, 580, Lord Reid said:
“[It] should I think be regarded as a statement of principle.
It is not to be treated as if it were a statutory definition.
It will require qualification in new circumstances. But I
think that the time has come when we can and should say
that it ought to apply unless there is some justification or
valid explanation for its exclusion.”
Mr. MacLean submitted that it would not be right to regard
damage caused by persons over whom the defender has no control
as excluded from this statement of principle. Rather, said Mr.
MacLean, one should take account of actions of third parties over
whom the defender has no control in considering the consequences
of acts or omissions on the defender’s part. He referred in
support of this submission to the later passages in Lord Reid’s
speech where he dealt with this question. As an illustration of
this approach being taken in Scotland, he referred to Squires v.
Perth and Kinross District Council, 1986 SLT 30, in which
jewellers successfully sued building contractors who were working
in a flat above their shop for not adequately securing the flat
against entry by thieves. A thief entered the jewellers’ premises
through the fiat by climbing up a drain pipe at the back of the
property to which he obtained access by climbing over a building.
A substantial quantity of jewellery was stolen.
For Littlewoods Mr. Johnston submitted that on the findings
of fact in the present case Littlewoods had not established,
applying the test of reasonable foreseeability, the existence of a
risk sufficient to have obliged Littlewoods to adopt in advance of
the catastrophic fire the only one of the prescribed remedies that
might have avoided that occurrence, namely, having the premises
watched all the time. He also advanced a broader proposition that
the policy of the law should deny these claims, firstly because
they involved an unwarranted invasion of the basic right of a
person to use his property as he pleased and, secondly, because
affirming these claims implied potential obligations on those who
leave property unoccupied for a comparatively short time that
would be unduly heavy having regard to the purpose intended to be
served. Or, putting the matter another way, he submitted that
the law should put the responsibility for securing the safety and
security of property against vandals on the owner or occupier of
the property and not on neighbouring owners or occupiers from
whose property damage by vandals and thieves might be caused.
In support of the submission that affirming the claims in the
present case would have the result of placing unduly heavy burdens
on the owners or occupiers of property, he pointed out that there
was no evidence that this building was in any way a special fire
hazard, nor was there evidence that this part of Dunfermline was
specially subject to vandalism.
In approaching these rival submissions it has to be borne in
mind that the damage to the neighbouring properties, upon which
the claims against Littlewoods are founded, is damage by fire or
otherwise resulting from vandalism in Littlewoods’ premises. A
duty of care to prevent this damage is the only duty alleged to be
– 9 –
incumbent upon Littlewoods relevant to this case. From this it
follows that unless Littlewoods were bound reasonably to anticipate
and guard against this danger, they had no duty of care, relevant
to this case, requiring them to inspect their premises. Unless,
therefore, Littlewoods, on taking control of these premises without
any knowledge of the subsequent history of the property after they
assumed control, ought reasonably to have anticipated that they
would be set on fire and thus or otherwise create a substantial
risk of damage to neighbouring properties if they did not take
precautions, the claims must fail. By approaching the matter in
five logical steps, Mr. MacLean made it appear easier to reach the
result for which he contended than it would be if one assumed
only Littlewoods’ proved state of knowledge and asked whether, in
that state of knowledge, they were to anticipate, as a reasonable
and probable consequence of their inaction, that a substantial risk
of fire damage to their neighbours was created. As I have said,
the Lord Ordinary’s answer to the basic question in the case
depended, and depended critically, on his assumption that
Littlewoods were to be taken as aware of the evidence relating to
the attempt to start a fire in the lane with the abandoned film
and to the smouldering carpet which Mr. Scott extinguished. It is
plain from the way in which the Lord Ordinary expresses his
opinion that, had it not been for his reliance upon that evidence
against Littlewoods, he would not have found against them. There
was no evidence that Littlewoods knew of these matters. Unless
they had a duty to inspect there is no basis on which it can be
alleged that they ought to have known of them. Since the only
basis on which any relevant duty of care is said to arise is that
damage to neighbouring properties was to be anticipated unless it
were exercised, in considering whether such damage should have
been anticipated one cannot assume that any of the relevant duties
should have been performed. I conclude that the Lord Ordinary
was not entitled to assume that Littlewoods should have known of
these matters. The First Division concluded, as I have said, that
the matter was at large for their consideration. In my opinion,
their Lordships of the First Division applied their minds to the
correct question. In my opinion, the question whether, in all the
circumstances described in evidence, a reasonable person in the
position of Littlewoods was bound to anticipate as probable, if he
took no action to keep these premises lockfast, that, in a
comparatively short time before the premises were demolished,
they would be set on fire with consequent risk to the neighbouring
properties is a matter for the judges of fact to determine. Once
it has been determined on the correct basis, an appeal court
should be slow to interfere with the determination. See, for
example, Lord Thankerton in Muir v. Glasgow Corporation, 1943
S.C.(H.L.) 3, 8 and Lord Porter in Bolton v. Stone [1951] AC 850,
860.
The cases to which Mr. MacLean drew attention in his
argument, and section 78 of the Act of 1980, illustrate that a
consequence of this kind, if premises are left unoccupied, is a
possibility, but the extent to which such an occurrence is probable
must depend on the circumstances of the particular case. While
no doubt in this case, as the judges in the courts below have
found, it was probable that children and young persons might
attempt to break into the vacated cinema, this by no means
establishes that it was a probable consequence of its being vacated
with no steps being taken to maintain it lockfast that it would be
– 10 –
set on fire with consequent risk of damage to neighbouring
properties. A telling point in favour of Littlewoods is that,
although Littlewoods’ particulars were shown on a board
prominently displayed at the front of the premises, no one made
any protest to them about the state of the premises, or indicated
to them any concern that, unless they took some action,
neighbouring premises were at risk. If, in the light of the
common knowledge in the neighbourhood, it had been anticipated
that the cinema might be set on fire, with consequent risk to
adjoining properties, I should have thought the persons concerned
with the safety of adjoining properties, who were certainly among
those acquainted with the situation, would have communicated
their anxieties to Littlewoods. Neither is there evidence that the
police were ever informed of the situation with regard to the
cinema, and this I would take as further confirmation that, in the
circumstances, no one anticipated any adverse consequences arising
from it. It is true that Mr. Scott, the beadle, spoke of anxiety
for the safety of children, and also made some reference, in that
connection, to the possibility of fire, but any concern he had was
not apparently sufficiently substantial to prompt him to take any
action whatever in the way of seeking to have the situation
remedied by the owners or the police.
This is sufficient for the disposal of this appeal but in view
of the general importance of some of the matters raised in the
parties’ submissions it is right that I should add some observations
on these.
First, Mr. MacLean urged us to say that the ordinary
principle to be deduced from Lord Atkin’s speech in Donoghue v.
Stevenson [1932] AC 562 should apply to cases where the damage
in question was caused by human agency. It is plain from the
authorities that the fact that the damage, upon which a claim is
founded, was caused by a human agent quite independent of the
person against whom a claim in negligence is made does not, of
itself, preclude success of the claim, since breach of duty on the
part of the person against whom the claim is made may also have
played a part in causing the damage. In dealing with the
submission in Dorset Yacht Co. Ltd, v. Home Office [1970] A.C.
1004 that the claim must fail because there was a general
principle that no person can be responsible for damage caused by
the acts of another who is not his servant nor acting on his
behalf, Lord Reid, having quoted from Haynes v. Harwood 1935 1
K.B. 146, and from Scott’s Trustees v. Moss (1889) 17 R. 32, said,
at p. 1030:
“These cases show that, where human action forms one of
the links between the original wrongdoing of the defendant
and the loss suffered by the plaintiff, that action must at
least have been something very likely to happen if it is not
to be regarded as novus actus interveniens breaking the
chain of causation. I do not think that a mere foreseeable
possibility is or should be sufficient, for then the intervening
human action can more properly be regarded as a new cause
than as a consequence of the original wrongdoing. But if
the intervening action was likely to happen I do not think
that it can matter whether that action was innocent or
tortious or criminal. Unfortunately, tortious or criminal
action by a third party is often the ‘very kind of thing’
– 11 –
which is likely to happen as a result of the wrongful or
careless act of the defendant. And in the present case, on
the facts which we must assume at this stage, I think that
the taking of a boat by the escaping trainees and their
unskilful navigation leading to damage to another vessel
were the very kind of thing that these Borstal officers
ought to have seen to be likely.”
It has to be borne in mind that Lord Reid was demonstrating only
that the submission with which he was dealing was incorrect. If a
person can be responsible for damage caused by acts of another
who is not his servant nor acting on his behalf that sufficed to
answer the question that Lord Reid had before him in the
respondent’s favour. It was accordingly not critical whether the
test was foreseeability of that damage as likely or very likely. At
the stage at which Lord Reid used the phrase “very likely” he was
giving his view on what the two cases he had cited showed. In
the first of these, the phrase used (per Greer L.J., is “the very
kind of thing which is likely to happen, at p. 156,)” and in the
second, the consequence that was being considered was described
in the passage quoted from Lord President Inglis, at p. 36, as “the
natural and almost inevitable consequence” of the defender’s action
which was the foundation of the claim. When Lord Reid turns to
state his own position, he does so on the basis that the intervening
action was likely to happen. In Muir v. Glasgow Corporation, 1943
S.C.(H.L.) 3, the issue was whether the defender’s manageress was
negligent in allowing two members of a picnic party to bring a tea
urn along a passage in her tea room without taking certain
precautions. The damage in question, in that case, might
therefore have arisen from the conduct of the two persons
carrying the tea urn, who were not employees of the defenders nor
in any way accountable to them. The test of liability set out by
Lord Macmillan in Bourhill v. Young [1943] AC 92, 104, namely:
“The duty to take care is the duty to avoid doing or
omitting to do anything the doing or omitting to do which
may have as its reasonable and probable consequence injury
to others, and the duty is owed to those to whom injury
may reasonably and probably be anticipated if the duty is
not observed” (underlining mine),
was expressly used by Lord Thankerton and Lord Macmillan. Lord
Wright said, at p. 16:
“As to negligence, the two men [who were carrying the urn]
were not their [i.e. the defenders’] servants. They were not
responsible for their acts. That the men should be negligent
in so simple an operation was not likely to happen. It was
a mere possibility, not a reasonable probability. The men,
if negligent, were, no doubt, responsible for their own
negligence, but from the standpoint of the appellants the
risk of negligence was a mere unlikely accident which no
responsible person in [the manageress’s] position could
naturally be expected to foresee.”
Lord Romer expressed it only slightly differently when he said, at
p. 19:
– 12 –
“In my opinion, the appellants can only be fixed with
liability if it can be shown that there materialised a risk
that ought to have been within the appellants’ reasonable
contemplation.”
Lord Clauson said, at p. 19:
“The crucial question in this matter appears to me to be
whether [the manageress] ought as a reasonable woman to
have had in contemplation that, unless some further
precautions were taken, such an unfortunate occurrence as
that which in fact took place might well be expected.”
There is no hint that any special qualification fell to be introduced
into the test in consequence of the urn being carried by two
persons not in the employment of the defenders and for whom
they would have no vicarious responsibility.
It is true, as has been pointed out by Oliver L.J., in Lamb
v. Camden London Borough Council [1981] QB 625, 642, that
human conduct is particularly unpredictable and that every society
will have a sprinkling of people who behave most abnormally. The
result of this consideration, in my opinion, is that where the only
possible source of the type of damage or injury which is in
question is agency of a human being for whom the person against
whom the claim is made has no responsibility, it may not be easy
to find that as a reasonable person he was bound to anticipate
that type of damage as a consequence of his act or omission. The
more unpredictable the conduct in question, the less easy to affirm
that any particular result from it is probable and in many
circumstances the only way in which a judge could properly be
persuaded to come to the conclusion that the result was not only
possible but reasonably foreseeable as probable would be to
convince him that, in the circumstances, it was highly likely. In
this type of case a finding that the reasonable man should have
anticipated the consequence of human action as just probable may
not be a very frequent option. Unless the judge can be satisfied
that the result of the human action is highly probable or very
likely he may have to conclude that all that the reasonable man
could say was that it was a mere possibility. Unless the needle
that measures the probability of a particular result flowing from
the conduct of a human agent is near the top of the scale it may
be hard to conclude that it has risen sufficiently from the bottom,
to create the duty reasonably to foresee it.
In summary I conclude, in agreement with both counsel, that
what the reasonable man is bound to foresee in a case involving
injury or damage by independent human agency, just as in cases
where such agency plays no part, is the probable consequences of
his own act or omission, but that, in such a case, a clear basis
will be required on which to assert that the injury or damage is
more than a mere possibility. To illustrate, it is not necessary to
go further than the decision of this House in Dorset Yacht Co.
Ltd, v. Home Office where I consider that all the members of the
majority found such a possible basis in the facts that the
respondent’s yacht was situated very close to the island on which
the Borstal boys escaped from their custodians, that the only
effective means of avoiding recapture was to escape by the use of
some nearby vessel, and that the only means of providing
– 13 –
themselves with the means to continue their journey was likely to
be theft from such nearby vessels. These considerations so limited
the options open to the escaping boys that it became highly
probable that the boys would use, damage or steal from one or
more of the vessels moored near the island.
The matter is further illustrated by Thomas Graham & Co.
Ltd, v. Church of Scotland General Trustees, 1982 S.L.T. (Sh.Ct.)
26, in which Sheriff Macvicar Q.C. found that the area in which
the defender’s church lay was subject to vandalism on a large
scale, that on an inspection of the church in which representatives
of the owners of the church took part shortly before the final fire
evidence existed of small fires having already been lit in its
interior and that, on that inspection, the official reporting to the
local authority concerned with public safety had reported that the
building should be demolished since it constituted a serious fire
hazard. Sheriff Macvicar concluded that by not taking the very
obvious and inexpensive precaution of securing the side door of the
church by which apparently access had been taken the defenders
had failed in their duty to take reasonable care for the safety of
their neighbour’s property. This decision appears to me to be in
accordance with the decision of your Lordship’s House in Sedleigh-
Denfield v. O’Callaghan [1940] AC 880, establishing the occupier’s
liability with regard to a hazard created on his land by a
trespasser, of which he has knowledge, when he fails to take
reasonable steps to remove it. On Sheriff Macvicar’s findings, the
empty church building constituted a serious fire hazard unless it
were effectively secured against further trespass.
Before leaving cases relating to fires, I should mention
Evans v. Glasgow District Council, 1978 S.L.T. 17 and Carrick
Furniture House Ltd, v. Paterson, 1978 S.L.T. Notes, already
referred to as illustrations cited by Mr. MacLean of vandalism
taking the form of wilful fire-raising. In the first of these, Evans,
the defenders had demolished premises which adjoined the pursuer’s
premises which were also leased from the defenders, and in doing
so had damaged the lock securing the pursuer’s doors which had
been replaced with inadequate locks. The pursuer suffered loss as
a result of (1) theft of goods by the persons who broke the new
and inadequate locks; (2) fire caused by vandals dropping lighted
material through gaps left by the defenders in floorboards above
the pursuer’s premises; and (3) water which escaped from the
defender’s premises as a result of vandals interfering with the
plumbing there. The case is reported at the stage of relevancy
where the defenders were arguing that the pursuer’s allegations,
even if fully established, would not justify their claim. In these
circumstances, Lord Wylie said, at p. 19:
“it seems to me that it would be entirely in accordance
with principle to hold that in such circumstances there was
a general duty on owners or occupiers of property,
particularly property of the tenement type, where they
chose to leave it vacant for any material length of time, to
take reasonable care to see that it was proof against the
kind of vandalism which was calculated to affect adjoining
property.”
I do not read Lord Wylie as there deciding that such a duty
in the circumstances necessarily had been incumbent on the
– 14 –
defenders. He was simply saying that principle would allow the
claim and therefore it would not be right to sustain the defenders’
submission. In my view that amounted only to a decision that
depending on the facts as they emerged a duty of the scope
alleged might be incumbent on owners or occupiers of such
property in some circumstances that fell within the allegations
made by the pursuer. Carrick Furniture which followed is
explicable on the same ground. Counsel for Littlewoods founded
on the decision in Fraser v. Glasgow Corporation, 1972 S.C. 162,
particularly a dictum of the Lord Justice-Clerk (Grant), at p. 173,
but the circumstances in which he declined to hold a injury
foreseeable were so different from those in the present case and
so special that I find it of no assistance in this case.
I turn now to consider the cases in the Court of Appeal in
England founded on by counsel for Littlewoods in support of his
broad submission. The first of these, Lamb v. Camden London
Borough Council [1981] QB 625, was a decision that a workman
damaging a water pipe with his pick in such a way that settlement
was occasioned to the foundations of the plaintiff’s house was not
reasonably bound to foresee as a consequence of that for which he
and his employers should be liable damage done to the plaintiff’s
house by squatters who obtained access because the house was not
adequately secured against their entry when it was empty in order
that repairs might be carried out. Both Lord Denning M.R. and
Oliver L.J. dealt fully with the speech of Lord Reid in Dorset
Yacht Co. Ltd, v. Home Office [1970] AC 1004, to which I have
already referred, and concluded that he was propounding “highly
likely” as the degree of probability required before liability for the
wrongful act of a third party could be established against a
defendant. It will be apparent that my understanding of Lord
Reid’s speech, in its context, is somewhat different from theirs.
While I do not consider that it is correct to base the decision in
Lamb v. Camden London Borough Council [1981] QB 625 on a
proposition as a matter of policy that no wrongdoer could ever be
liable for outrageous or anti-social conduct that had followed his
wrongdoing and had contributed to the damage resulting therefrom,
I respectfully and entirely agree with the result to which the
Court of Appeal came in that case, and particularly with the
reason for it expressed by Oliver L.J. where he said, at p. 643:
“I confess that I find it inconceivable that the reasonable
man wielding his pick in the road in 1973 could be said
reasonably to foresee that his puncturing of a water main
would fill the plaintiffs’ house with uninvited guests in
1974.”
The next case referred to was P. Peri (Exporters) Ltd, v.
Camden London Borough Council [1984] QB 342, in which the
plaintiffs were tenants of the defendants who used the basement
of the demised premises in accordance with the terms of the lease
for the storage of garments. The defendants were also the owners
of the adjoining premises. These premises had a broken lock on
the front door. Unauthorised persons were often seen on those
premises and burglaries had also taken place there, but the
defendants had done nothing about complaints regarding lack of
security. During a weekend, intruders entered the basement of the
premises adjoining the plaintiffs’ premises, knocked a hole through
the wall separating that basement from the plaintiffs’ basement,
– 15 –
and stole some knitwear belonging to the plaintiffs from their
basement. The plaintiffs brought an action against the defendants
claiming damages for negligence. The Court of Appeal held that
the claim failed. Waller and Oliver L.JJ. held that, although it
was a foreseeable possibility that thieves might gain access
through the defendants’ property to the plaintiffs’ property, the
defendants were not reasonably bound to foresee as the natural
and probable consequence of their omission to secure their
premises that persons over whom they had no control would steal
the plaintiffs’ goods. My noble and learned friend, Lord Goff of
Chieveley, as Robert Goff L.J., gave the third judgment. He
quoted, at p. 359, from Dixon J. in Smith v. Leurs (1945) 70
C.L.R. 256, 262, a passage which was cited with approval in
Dorset Yacht Co. Ltd, v. Home Office [1970] AC 1004. The full
passage, cited in Dorset, is (pp. 261-262):
“But, apart from vicarious responsibility, one man may be
responsible to another for the harm done to the latter by a
third person; he may be responsible on the ground that the
act of the third person could not have taken place but for
his own fault or breach of duty. There is more than one
description of duty the breach of which may produce this
consequence. For instance, it may be a duty of care in
reference to things involving special danger. It may even
be a duty of care with reference to the control of actions
or conduct of the third person. It is, however, exceptional
to find in the law a duty to control another’s actions to
prevent harm to strangers. The general rule is that one
man is under no duty of controlling another man to prevent
his doing damage to a third. There are, however, special
relations which are the source of a duty of this nature.”
Robert Goff L.J. went on, at pp. 359-360:
“It is of course true that in the present case the plaintiffs
do not allege that the defendants should have controlled the
thieves who broke into their storeroom. But they do allege
that the defendants should have exercised reasonable care to
prevent them gaining access through their own premises; and
in my judgment the statement of principle by Dixon J. is
equally apposite in such a case. I know of no case where it
has been held, in the absence of a special relationship, that
the defendant was liable in negligence for having failed to
prevent a third party from wrongfully causing damage to the
plaintiff.”
Earlier he had made reference to Stansbie v. Troman [1948] 2 K.B.
48, in which a decorator who had contracted to carry out work in
the plaintiff’s home went out for a time when no one else was in
the house, leaving the door unsecured. In consequence, a thief
entered and removed some of the plaintiff’s property from the
house and the plaintiff succeeded in recovering damages against
the decorator. There was in that case no special relationship
between the decorator and the thief although there was a contract
between the decorator and the plaintiff. I should have thought
that on the same facts, a guest of the plaintiff’s who had left
property in the house, if it had been stolen, might also have
succeeded in recovering damages in respect of that theft from the
decorator. That case proceeded on the basis that the decorator
– 16 –
was liable because it was “as a direct result of his negligence that
the thief entered by the front door” (per Tucker L.J., at p. 52) I
think it could be said that the purpose of the security
arrangements at the door of the house was to prevent unlawful
intrusion, that a reasonable man, in the decorator’s position, would
have secured the door, and that, on analysis, his reason for doing
so would be to prevent the consequence which he ought reasonably
to foresee of unauthorised intrusion and theft from the house
whose door it was. On the other hand, if the thief, instead of
confining his attention to the house whose door it was, bored a
hole through the wall into the house next door, and stole items
from the adjoining proprietor, assuming the first house was in a
terrace or semi-detached, I consider that the decorator would not
be liable in respect of the adjoining proprietor’s loss, in the
absence of circumstances from which this was shown to be
reasonably foreseeable.
If the proprietor of the first house returned in time to find
the thief boring a hole in the wall with the intention of effecting
entry to the adjoining house, in the light of the decision in
Sedleigh-Denfield v. O’Callaghan [1940] A.C. 80 I consider the first
proprietor would be under a duty of care to the second proprietor
to take what reasonable steps were open to him to cause the
boring to cease. In some sense a thief who goes through one
proprietor’s property in order to reach the adjoining property of
his neighbour creates a special relationship between himself and
the first proprietor as a user of the first proprietor’s land. In my
opinion, therefore, the reason that in the circumstances of P. Perl
(Exporters) Ltd, v. Camden London Borough Council [1984] Q.B.
342 no duty was owed by the defendants to Perl was that the
defendants were not bound as reasonable occupiers to foresee that,
if they took no steps to improve the security of their property, a
probable consequence of that was that thieves would first
unlawfully enter their property and then, by making an opening in
the dividing wall or otherwise, use the defendant’s property to
make an entry into the property of Perl for the purpose of
stealing goods belonging to Perl. Although a duty to prevent a
person from unlawfully entering my property may, in a sense, be
described as a duty to control that person, I would not consider
this a very natural use of the word “control.” Control signifies, to
my mind, a more extended relationship than would be involved in
simply keeping another off my property. If this be right, the duty
alleged by Perl to be incumbent on Camden was a duty falling
under the earlier part of Dixon J.’s dictum, as giving rise to
responsibility on the ground that the act of the thief could not
have taken place but for the fault or breach of duty of the
defendant but not to a duty of care with reference to the control
of actions or conduct of the thief. Like Oliver L.J. in Perl, at p.
357G, I would regard the mode of entry in question in that case
to the plaintiffs’ premises as a foreseeable possibility and no more,
and in my view, that reasoning amply supports the decision of the
Court of Appeal in Perl.
The somewhat analogous case of Squires v. Perth and
Kinross District Council. 1986 SLT 30, to which I have already
referred, in the Second Division of the Court of Session, so far as
it was based on the fact that the defending contractors, having by
their work seriously reduced the security of the flat above the
shop premises, failed to take adequate steps temporarily to secure
– 17 –
it when they were absent, was decided by an application of what,
in my opinion, was the correct test. Like Lord Dunpark, I have
the greatest difficulty in seeing, in view of the mode of entry
which the thief actually used, that the alleged breach of duty was
in any way related to the particular manner in which the theft
occurred.
,
The decision in Perl was applied in King v. Liverpool City
Council [1986] 1 W.L.R. 890, in which the question of damage by
vandals to property again arose. The plaintiff was the tenant of a
flat in a block of flats owned by the defendant. When the flat
immediately above the plaintiff’s flat became vacant, she
requested the defendant to board it up so as to secure it against
intruders. The defendant took no effective steps to secure the
upper flat and on three occasions vandals broke in and damaged
water pipes in that flat allowing water to escape down into the
plaintiff’s flat where it caused damage. The plaintiff claimed
damages against the defendant, alleging that it owed her a duty of
care so to secure the vacant flat as to prevent vandals gaining
access to it. The trial judge found that it would not have been
possible to take effective steps in the situation disclosed in the
evidence which could defeat the activities of vandals and dismissed
the plaintiff’s claim. The plaintiff appealed.
The Court of Appeal (Purchas and Nicholls L.JJ. and
Caulfield J.) dismissed the appeal. After referring to a number of
authorities, Purchas L.J. said, at p. 901:
“The judge’s finding is, in my judgment, determinative of
this appeal. Summarizing his judgment, he said:
‘Regrettably … I find that it is not possible for effective
steps to be taken in a situation like this which could defeat
the activities of vandals.’ Whether this finding, together
with the established circumstances of the council, should
operate to restrict the ambit of the duty to take any
positive steps to secure the property, or duty arising in
relation to an omission to take such steps; or whether it
operates to break the chain of causation, may, as Robert
Goff L.J. suggested in [the] passage which I have just cited
from Paterson Zochonis Ltd, v. Merfarken Packaging Ltd.
[1983] F.S.R. 273, 299, not be essentially material.
Personally I prefer the former approach and would limit the
area of the duty itself in the circumstances prevailing in
this case. In either event, in my judgment the judge was
right to hold that the council held no duty to the plaintiff
in respect of the acts of the vandals in this case and
accordingly I would dismiss this appeal.”
Nicholls L.J. agreed but added, at pp. 901-902, in relation to an
argument for the plaintiff that King was to be distinguished from
P. Perl (Exporters) Ltd, v. Camden London Borough Council [1984]
Q.B. 342:
“I am unable to accept that any material ground of
distinction exists between the two cases. In P. Perl
(Exporters) Ltd, v. Camden London Borough Council [1984]
Q.B. 342, as in the instant case, the plaintiff sought to
make the defendant occupier liable in negligence for the
wrongdoing of a third party. In his judgment Robert Goff
– 18 –
L.J. set out, at p. 359 . . . some examples of circumstances
where there may be liability for a third party’s wrongdoing,
and concluded that those instances were very different from
that case where, as in the present case, the allegation was
that the defendant failed to exercise reasonable care to
prevent a third party from causing damage to the plaintiff.
In his preface to that passage Robert Goff L.J. assumed
that there might well be cases where the occupier could
reasonably foresee that thieves might use the unprotected
property as a means of access to neighbouring property.
But he, in common with the other members of the court,
rejected the existence of the broad duty of care contended
for by the plaintiff’s counsel, and his conclusion was to the
effect that in the absence of a special relationship, there
was no duty to prevent thieves from so using one’s property.
I cannot see any distinction in principle between a case
where the damage arises from the third party using the
defendant’s property as a means of obtaining unauthorised
access to the plaintiff’s property and there committing
theft, and one where the damage arises from the third party
so conducting himself on the defendant’s property as to
damage the plaintiff’s property by causing water to escape
from the former property to the latter. Nor can I see that
it is material that the defendant had a responsibility to take
reasonable steps to prevent the escape from its property of
water in an ordinary domestic water system. I do not
consider that there is a greater responsibility on the
defendant because the third party caused damage by
creating an escape of water than if the damage had been
caused by the third party lighting a fire on the defendant’s
property or, if the defendant’s property had been on the top
floor of the building, by the third party stripping lead from
the roof and thereby permitting rain to enter and eventually
to reach and damage the plaintiff’s property.”
Caulfield J. agreed with both judgments.
The conclusion of fact that no effective precautions on the
lines suggested by the plaintiff could be taken by the defendant to
prevent the damage suffered by the plaintiff was amply sufficient
to justify the conclusion reached by the Court of Appeal in King
v. Liverpool City Council [1986] 1 W.L.R. 890. Leave to appeal to
this House from the decision was refused to the plaintiff.
However, while it may well be true that no distinction of
legal principle falls to be made between the various cases referred
to by Nicholls L.J., I consider that there may be important
differences in the facts which could justify different results.
Cases of theft where the thief uses a neighbour’s premises
to gain access to the premises of the owner of the stolen goods
are, in my opinion, in an important respect different from cases of
fire such as that with which your Lordships are concerned in the
present appeal. In the case of fire, a hazard is created on the
first occupier’s premises and it is that hazard which operating
from the first occupier’s premises creates danger to the
neighbouring properties. As I have said, even although that hazard
is created by the act of a trespasser on the first premises the
occupier of these premises, once he knows of the physical facts
– 19 –
giving rise to the hazard, has a duty to take reasonable care to
prevent the hazard causing damage to neighbouring properties. In
the ordinary case of theft where the thief uses the first
proprietor’s property only as an access to the property of the
person from whom the stolen property is taken there is no similar
hazard on the first proprietor’s land which causes the damage to
the neighbouring property. Success of the theft depends very
much on its mode and occasion being unexpected. The only danger
consists in the thief or thieves who, having passed from trespassing
on the first proprietor’s property, go on to trespass on his
neighbour’s. There is also a sense in which neighbouring
proprietors can, independently, take action to protect themselves
against theft in a way that is not possible with fire. Once the
fire had taken hold on Littlewoods’ building, St. Paul’s proprietors
could not be expected to take effective steps to prevent sparks
being showered over on their property. On the other hand, in the
jewellery case (Squires v. Perth and Kinross District Council, 1986
S.L.T. 30) there was no reason why the pursuers if they had
anticipated the risk of theft as sufficiently serious should not have
had a burglar alarm which would prove effective to warn of
burglars whatever their mode of entry although this would not, of
itself, prevent their entry.
Where the question is whether or not the duty to take a
particular precaution is incumbent on a defendant, the probability
of the risk emerging is not the only consideration, as was pointed
out by Lord Reid giving the opinion of the board in Overseas
Tankship (U.K.) Ltd, v. Miller Steamship Co. Pty. [1967] 1 A.C.
617 in reference to Bolton v. Stone [1951] AC 850, said, at pp.
642-643:
“The House of Lords held that the risk was so small that in
the circumstances a reasonable man would have been
justified in disregarding it and taking no steps to eliminate
it. But it does not follow that, no matter what the
circumstances may be, it is justifiable to neglect a risk of
such a small magnitude. A reasonable man would only
neglect such a risk if he had some valid reason for doing
so, e.g., that it would involve considerable expense to
eliminate the risk. He would weigh the risk against the
difficulty of eliminating it. If the activity which caused the
injury to Miss Stone had been an unlawful activity, there
can be little doubt that but that Bolton v. Stone would have
been decided differently. In their Lordships’ judgment
Bolton v. Stone did not alter the general principle that a
person must be regarded as negligent if he does not take
steps to eliminate a risk which he knows or ought to know
is a real risk and not a mere possibility which would never
influence the mind of a reasonable man. What that decision
did was to recognise and give effect to the qualification
that it is justifiable not to take steps to eliminate a real
risk if it is small and if the circumstances are such that a
reasonable man, careful of the safety of his neighbour,
would think it right to neglect it”.
In my opinion this observation demonstrates that when the word
“probable” is used in this context in the authorities, it is used as
indicating a real risk as distinct from a mere possibility of danger.
It is not used in the sense that the consequence must be more
– 20 –
probable than not to happen, before it can be reasonably
foreseeable. And again, in Goldman v. Hargrave [1967] 1 A.C.
645, Lord Wilberforce giving the opinion of the board, referring to
a number of textbooks as well as an article by Dr. A. L.
Goodhart, says, at pp. 662-663:
“All of these endorse the development which their Lordships
find in the decisions, towards a measured duty of care by
occupiers to remove or reduce hazards to their neighbours.
So far it has been possible to consider the existence of a
duty, in general terms. But the matter cannot be left there
without some definition of the scope of his duty. How far
does it go? What is the standard of the effort required?
What is the position as regards expenditure? It is not
enough to say merely that these must be ‘reasonable,’ since
what is reasonable to one man may be very unreasonable,
and indeed ruinous, to another: the law must take account
of the fact that the occupier on whom the duty is cast has,
ex hypothesi, had this hazard thrust upon him through no
seeking or fault of his own. His interest, and his resources,
whether physical or material, may be of a very modest
character either in relation to the magnitude of the hazard,
or as compared with those of his threatened neighbour. A
rule which required of him in such unsought circumstances
in his neighbour’s interest a physical effort of which he is
not capable, or an excessive expenditure of money, would be
unenforceable or unjust. One may say in general terms that
the existence of a duty must be based upon knowledge of
the hazard, ability to foresee the consequences of not
checking or removing it, and the ability to abate it. And in
many cases, as, for example, in Scrutton L.J.’s hypothetical
case of stamping out a fire, or the present case, where the
hazard could have been removed with little effort and no
expenditure, no problem arises. But other cases may not be
so simple. In such situations the standard ought to be to
require of the occupier what it is reasonable to expect of
him in his individual circumstances. Thus, less must be
expected of the infirm than of the able-bodied: the owner
of a small property where a hazard arises which threatens a
neighbour with substantial interests should not have to do so
much as one with larger interests of his own at stake and
greater resources to protect them: if the small owner does
what he can and promptly calls on his neighbour to provide
additional resources, he may be held to have done his duty:
he should not be liable unless it is clearly proved that he
could, and reasonably in his individual circumstances should,
have done more.”
My Lords, I think it is well to remember as Lord Radcliffe
pointed out in Bolton v. Stone [1951] AC 850, 868-869:
“a breach of duty has taken place if they show the
appellants guilty of a failure to take reasonable care to
prevent the accident. One may phrase it as ‘reasonable
care‘ or ‘ordinary care’ or ‘proper care’ – all these phrases
are to be found in decisions of authority – but the fact
remains that, unless there has been something which a
reasonable man would blame as falling beneath the standard
of conduct that he would set for himself and require of his
neighbour, there has been no breach of legal duty.”
– 21 –
This is the fundamental principle and in my opinion various
factors will be taken into account by the reasonable man in
considering cases involving fire on the one hand and theft on the
other but since this is the principle the precise weight to be given
to these factors in any particular case will depend upon the
circumstances and rigid distinctions cannot be made between one
type of hazard and another. I consider that much must depend on
what the evidence shows is done by ordinary people in like
circumstances to those in which the claim of breach of duty
arises.
In my view, if the test of the standard of the reasonable
man is applied to the steps an occupier of property must take to
protect neighbouring properties from the hazard of fire arising on
his property no further consideration of policy arises that should
lessen the responsibility of the occupier in a case such as this.
Mr. Johnston’s broad submission does not therefore add
anything to his narrow submission in the circumstances of this case
since, in my opinion, no undue burdens are put upon property
occupiers by the application of the principle of Donoghue v.
Stevenson [1932] A C 562 nor is there any undue interference with
the freedom of a person to use his property as he pleases.
In my opinion, these appeals should be refused and the
interlocutors of the First Division affirmed. The appellants must
pay the Littlewoods’ costs of the appeals.
LORD GOFF OF CHIEVELEY
My Lords,
The Lord President founded his judgment on the proposition
that the defenders, who were both owners and occupiers of the
cinema, were under a general duty to take reasonable care for the
safety of premises in the neighbourhood.
Now if this proposition is understood as relating to a
general duty to take reasonable care not to cause damage to
premises in the neighbourhood (as I believe that the Lord President
intended it to be understood) then it is unexceptionable. But it
must not be overlooked that a problem arises when the pursuer is
seeking to hold the defender responsible for having failed to
prevent a third party from causing damage to the pursuer or his
property by the third party’s own deliberate wrongdoing. In such a
case, it is not possible to invoke a general duty of care; for it is
well recognised that there is no general duty of care to prevent
third parties from causing such damage. The point is expressed
very clearly in Hart and Honour, Causation in the Law, 2nd ed.
(19 ), when the authors state, at pp. 196-197:
“The law might acknowledge a general principle that,
whenever the harmful conduct of another is reasonably
foreseeable, it is our duty to take precautions against it . .
. . But, up to now, no legal system has gone so far as
this.”
– 22 –
The same point is made in Fleming, The Law of Torts, 6th ed.
(1983), where it is said, at p. 200:
“there is certainly no general duty to protect others against
theft or loss.”
I wish to add that no such general duty exists even between those
who are neighbours in the sense of being occupiers of adjoining
premises. There is no general duty upon a householder that he
should act as a watchdog, or that his house should act as a
bastion, to protect his neighbour’s house.
Why does the law not recognise a general duty of care to
prevent others from suffering loss or damage caused by the
deliberate wrongdoing of third parties? The fundamental reason is
that the common law does not impose liability for what are called
pure omissions. If authority is needed for this proposition, it is to
be found in the speech of Lord Diplock in Dorset Yacht Co. Ltd.
v. Home Office [1970] AC 1004, where he said, at p. 1060:
“The very parable of the good Samaritan (Luke 10, v. 30)
which was evoked by Lord Atkin in Donoghue v. Stevenson
[1932] AC 562 illustrates, in the conduct of the priest and
of the Levite who passed by on the other side, an omission
which was likely to have as its reasonable and probable
consequence damage to the health of the victim of the
thieves, but for which the priest and Levite would have
incurred no civil liability in English law.”
Lord Diplock then proceeded to give examples which show that,
carried to extremes, this proposition may be repugnant to modern
thinking. It may therefore require one day to be reconsidered,
especially as it is said to provoke an “invidious comparison with
affirmative duties of good-neighbourliness in most countries outside
the common law orbit” (see Fleming, The Law of Torts, 6th ed., p.
138). But it is of interest to observe that, even if we do follow
the example of those countries, in all probability we will, like
them, impose strict limits upon any such affirmative duty as may
be recognised. In one recent French decision, the condition was
imposed that the danger to the claimant must be “grave,
imminent, constant . . . necessitate one intervention immediate,”
and that such an intervention must not involve any “risqué pour le
prevent our pour un tiers”: see Lawson and Markesan’s, Tortious
liability for unintentional harm in the Common law and the Civil
law, (1982) vol. I, pp. 74-75. The latter requirement is consistent
with our own law, which likewise imposes limits upon steps
required to be taken by a person who is under an affirmative duty
to prevent harm being caused by a source of danger which has
arisen without his fault (see Goldman v. Margrave [1967] 1 A.C.
645), a point to which I shall return later. But the former
requirement indicates that any affirmative duty to prevent
deliberate wrongdoing by third parties, if recognised in English law,
is likely to be strictly limited. I mention this because I think it
important that we should realise that problems like that in the
present case are unlikely to be solved by a simple abandonment of
the common law’s present strict approach to liability for pure
omissions.
– 23 –
Another statement of principle, which has been much
quoted, is the observation of Lord Sumner in Weld-Blundell v.
Stephens [1920] A.C. 956, when he said, at p. 986:
“In general . . . even though A is in fault, he is not
responsible for injury to C which B, a stranger to him,
deliberately chooses to do.”
This dictum may be read as expressing the general idea that the
voluntary act of another, independent of the defender’s fault, is
regarded as a novus actus interveniens which, to use the old
metaphor, “breaks the chain of causation.” But it also expresses a
general perception that we ought not to be held responsible in law
for the deliberate wrongdoing of others. Of course, if a duty of
care is imposed to guard against deliberate wrongdoing by others,
it can hardly be said that the harmful effects of such wrongdoing
are not caused by such breach of duty. We are therefore thrown
back to the duty of care. But one thing is clear, and that is that
liability in negligence for harm caused by the deliberate
wrongdoing of others cannot be founded simply upon foreseeability
that the pursuer will suffer loss or damage by reason of such
wrongdoing. There is no such general principle. We have
therefore to identify the circumstances in which such liability may
be imposed.
That there are special circumstances in which a defender
may be held responsible in law for injuries suffered by the pursuer
through a third party’s deliberate wrongdoing is not in doubt. For
example, a duty of care may arise from a relationship between the
parties, which gives rise to an imposition or assumption of
responsibility upon or by the defender, as in Stansbie v. Troman
[1948] 2 K.B. 48, where such responsibility was held to arise from
a contract. In that case a decorator, left alone on the premises
by the householder’s wife, was held liable when he went out
leaving the door on the latch, and a thief entered the house and
stole property. Such responsibility might well be held to exist in
other cases where there is no contract, as for example where a
person left alone in a house has entered as a licensee of the
occupier. Again, the defender may be vicariously liable for the
third party’s act; or he may be held liable as an occupier to a
visitor on his land. Again, as appears from the dictum of Dixon J
in Smith v. Leurs, 70 C.L.R. 256, 262, a duty may arise from a
special relationship between the defender and the third party, by
virtue of which the defender is responsible for controlling the third
party: see, for example, Dorset Yacht Co. Ltd, v. Home Office
[1970] AC 1004. More pertinently, in a case between adjoining
occupiers of land, there may be liability in nuisance if one
occupier causes or permits persons to gather on his land, and they
impair his neighbour’s enjoyment of his land. Indeed, even if such
persons come on to his land as trespassers, the occupier may, if
they constitute a nuisance, be under an affirmative duty to abate
the nuisance. As I pointed out in P. Perl (Exporters) Ltd, v.
Camden London Borough Council [1984] QB 342, 359, there may
well be other cases.
These are all special cases. But there is a more general
circumstance in which a defender may be held liable in negligence
to the pursuer, although the immediate cause of the damage
suffered by the pursuer is the deliberate wrongdoing of another.
– 24 –
This may occur where the defender negligently causes or permits
to be created a source of danger, and it is reasonably foreseeable
that third parties may interfere with it and, sparking off the
danger, thereby cause damage to persons in the position of the
pursuer. The classic example of such a case is, perhaps, Haynes
v. Harwood [1935] 1 K.B. 146, where the defendant’s carter left a
horse-drawn van unattended in a crowded street, and the horses
bolted when a boy threw a stone at them. A police officer who
suffered injury in stopping the horses before they injured a woman
and children was held to be entitled to recover damages from the
defendant. There, of course, the defendant’s servant had created
a source of danger by leaving his horses unattended in a busy
street. Many different things might have caused them to bolt – a
sudden noise or movement, for example, or, as happened, the
deliberate action of a mischievous boy. But all such events were
examples of the very sort of thing which the defendant’s servant
ought reasonably to have foreseen and to have guarded against by
taking appropriate precautions. In such a case, Lord Sumner’s
dictum (Weld-Blundell v. Stephens [1972] A.C. 956, 986) can have
no application to exclude liability.
Haynes v. Harwood was a case concerned with the creation
of a source of danger in a public place. We are concerned in the
present case with an allegation that the defenders should be held
liable for the consequences of deliberate wrongdoing by others who
were trespassers on the defenders’ property. In such a case it
may be said that the defenders are entitled to use their property
as their own and so should not be held liable if, for example,
trespassers interfere with dangerous things on their land. But this
is, I consider, too sweeping a proposition. It is well established
that an occupier of land may be liable to a trespasser who has
suffered injury on his land; though in Herrington v. British
Railways Board [1972] AC 877, in which the nature and scope of
such liability was reconsidered by your Lordships’ House, the
standard of care so imposed on occupiers was drawn narrowly so
as to take proper account of the rights of occupiers to enjoy the
use of their land. It is, in my opinion, consistent with the
existence of such liability that an occupier who negligently causes
or permits a source of danger to be created on his land, and can
reasonably foresee that third parties may trespass on his land and,
interfering with the source of danger, may spark it off, thereby
causing damage to the person or property of those in the vicinity,
should be held liable to such a person for damage so caused to
him. It is useful to take the example of a fire hazard, not only
because that is the relevant hazard which is alleged to have
existed in the present case, but also because of the intrinsically
dangerous nature of fire hazards as regards neighbouring property.
Let me give an example of circumstances in which an occupier of
land might be held liable for damage so caused. Suppose that a
person is deputed to buy a substantial quantity of fireworks for a
village fireworks display on Guy Fawkes night. He stores them, as
usual, in an unlocked garden shed abutting onto a neighbouring
house. It is well known that he does this. Mischievous boys from
the village enter as trespassers and, playing with the fireworks,
cause a serious fire which spreads to and burns down the
neighbouring house. Liability might well be imposed in such a
case; for, having regard to the dangerous and tempting nature of
fireworks, interference by naughty children was the very thing
which, in the circumstances, the purchaser of the fireworks ought
to have guarded against.
– 25 –
But liability should only be imposed under this principle in
cases where the defender has negligently caused or permitted the
creation of a source of danger on his land, and where it is
foreseeable that third parties may trespass on his land and spark it
off, thereby damaging the pursuer or his property. Moreover it is
not to be forgotten that, in ordinary households in this country,
there are nowadays many things which might be described as
possible sources of fire if interfered with by third parties, ranging
from matches and firelighters to electric irons and gas cookers and
even oil-fired central heating systems. These are commonplaces of
modern life; and it would be quite wrong if householders were to
be held liable in negligence for acting in a socially acceptable
manner. No doubt the question whether liability should be imposed
on defenders in a case where a source of danger on his land has
been sparked off by the deliberate wrongdoing of a third party is
a question to be decided on the facts of each case, and it would,
I think, be wrong for your Lordships’ House to anticipate the
manner in which the law may develop: but I cannot help thinking
that cases where liability will be so imposed are likely to be very
rare.
There is another basis upon which a defender may be held
liable for damage to neighbouring property caused by a fire started
on his (the defender’s) property by the deliberate wrongdoing of a
third party. This arises where he has knowledge or means of
knowledge that a third party has created or is creating a risk of
fire, or indeed has started a fire, on his premises, and then fails
to take such steps as are reasonably open to him (in the limited
sense explained by Lord Wilberforce in Goldman v. Hargrave [1967]
1 A.C. 645, 663-664) to prevent any such fire from damaging
neighbouring property. If, for example, an occupier of property
has knowledge, or means of knowledge, that intruders are in the
habit of trespassing upon his property and starting fires there,
thereby creating a risk that fire may spread to and damage
neighbouring property, a duty to take reasonable steps to prevent
such damage may be held to fall upon him. He could, for
example, take reasonable steps to keep the intruders out. He
could also inform the police; or he could warn his neighbours and
invite their assistance. If the defender is a person of substantial
means, for example a large public company, he might even be
expected to employ some agency to keep a watch on the premises.
What is reasonably required would, of course, depend on the
particular facts of the case. I observe that, in Goldman v.
Hargrave, such liability was held to sound in nuisance; but it is
difficult to believe that, in this respect, there can be any material
distinction between liability in nuisance and liability in negligence.
I turn to the authorities. Your Lordships were referred in
the course of argument to two Scottish cases concerned with fire
hazards. The first was Carrick Furniture House Ltd, v. Paterson
1978 S.L.T. (Notes) 48. ” In that case, in allowing proof before
answer, the Lord Ordinary (Lord Allanbridge) founded upon the
facts that the building in question, which contained considerable
quantities of inflammable material, constituted a fire hazard, and
that the risk of a vandal setting fire to the premises was not too
remote. The case is only briefly reported; but it provides an
indication that cases of this kind cannot normally be disposed of
on a plea to the relevancy, but have to be allowed to go to proof.
– 26 –
In the second case, Thomas Graham & Co. Ltd, v. Church of
Scotland General Trustees, 1982 S.L.T. (Sh.Ct.) 26, Sheriff
Macvicar Q.C. held that the defenders, who were occupiers of a
disused church, were liable to the pursuers whose neighbouring
property suffered damage by reason of a fire started in the church
by unknown vandals. He relied (inter alia) on the facts that the
church was situated in an area of Glasgow which was subject to
vandalism on a large scale; that, to the knowledge of the
defenders, on a number of previous occasions vandals had entered
the church and caused damage there; that the vandals had also lit
small fires in the church, and that a responsible inspector had
expressed the opinion that the building was a serious fire hazard;
that there was no evidence that the defenders, or anyone on their
behalf, had applied their minds to the question of fire hazard, and
that there was ample evidence to support the view that, if they
had, and had taken advice on the matter, they would have been
told that the building was a serious fire risk; and that, for two
months before the fire, the building was not lockfast. I incline to
the opinion that this case can best be classified under the second
of the two heads of liability to which I have referred, on the basis
that the defenders had the means of knowledge that a risk of fire
had been created or was being created by third parties on their
land, and yet they did nothing to prevent such risk of fire from
damaging neighbouring property. The leading Commonwealth case
in which an occupier of land was held liable for damage caused to
his neighbour’s property by a fire which started on his own land
without his fault (when lightning struck a tall tree), and which he
negligently failed to prevent from spreading onto his neighbour’s
land, is Goldman v. Hargrave itself. But a case more similar to
the two Scottish cases to which I have referred is perhaps the
American case of Torrack v. Corpamerica Inc. (1958) 144 A.2d.
703, where it was alleged that the defendant’s derelict property
was frequented by children and vagrants and had been condemned
by the fire marshal as a fire menace, and that thereafter a fire
was deliberately started by a third person on the property which
spread to and damaged the plaintiff’s neighbouring property; there
the defendant’s motion for summary judgment was denied. In so
holding, Judge Christie relied on earlier cases to the same effect,
viz. Prince v. Chehalis Savings & Loan Association (1936) 186
Wash. 372; 38 P.(2d) 290; 61 P.(2d) 1374, and Arneil v. Schnitzer
(1944) 173 Or. 179; 144 P.(2d) 707.
Turning to the facts of the present case, I cannot see that
the defenders should be held liable under either of these two
possible heads of liability. First, I do not consider that the empty
cinema could properly be described as an unusual danger in the
nature of a fire hazard. As the Lord President pointed out, 1986
S.L.T. 272,276:
“There was nothing about the building, so far as we know
from the evidence, to suggest that it could easily be set
alight.”
This conclusion was, in my judgment, entirely justified on the
evidence in the case; and it is, I consider, fatal to any allegation
that the defenders should be held liable on the ground that they
negligently caused or permitted the creation of an unusual source
of danger in the nature of a fire hazard.
– 27 –
Nor can I see that the defenders should be held liable for
having failed to take reasonable steps to abate a fire risk created
by third parties on their property without their fault. If there
was any such fire risk, they had no means of knowing that it
existed. If anybody (for example, the police) considered that there
was such a risk, they could and should have contacted the
defenders (a well known public company, whose particulars were
given on a notice outside the cinema) by telephone to warn them
of the situation; but they did not do so. But in any event, on the
evidence, the existence of such a risk was not established. As the
Lord President observed, at pp. 276-277:
“It is, in my opinion, significant that no witness who spoke
about the increasing use of the cinema by intruding children
and the witnesses included the minister of St. Paul’s Church,
the session clerk and the beadle, and also Mr. Maloco
reported to the police or the defenders what they had
observed. If it had crossed their minds that it was likely
that the children would set fire to the building and put
neighbouring properties at risk, it is inconceivable that they
would not have taken immediate steps, by reporting to the
police and the defenders, to bring the use of the premises
by children to an end. My experience of life, which I am
entitled to bring to bear as a juryman would, has not taught
me that empty buildings, to which vandals gain access, are
likely to be set on fire by them …”
In the course of his argument before your Lordships, Mr.
MacLean placed reliance upon the decision of the Inner House of
the Court of Session in Squires v. Perth and Kinross District
Council, 1986 SLT 30. That was a case concerned not with
liability in respect of a fire hazard, but with liability in respect of
a theft by a burglar who had gained access to the pursuer’s
jeweller’s shop through a flat above which was empty because it
was being renovated by building contractors who were held to be
in occupation of the flat. It was held that the contractors, as
occupiers, were liable in negligence to the pursuers for the loss of
the jewellery stolen from the shop, on the ground that any person
in occupancy and control of the flat above would have readily
foreseen the likelihood of what in fact occurred. It appears that
the fact that the flat above was empty was plainly apparent from,
in particular, the presence of scaffolding at the front of the
building; and complaints had been made on a number of occasions
that the contractors did not keep the flat secure, for example,
because windows were left open and unglazed to accommodate
scaffolding. It was a remarkable feature of the case that the
burglar himself, one Sneddon, gave evidence at the trial; and it
transpired from his evidence that, although his attention was drawn
to the possibility of breaking into the jeweller’s shop through the
empty flat by seeing the scaffolding and open windows of the flat
facing the High Street, he in fact approached the flat from
behind, climbing over a building of about 12 to 15 feet high
overall. He found the door into the yard behind the shop and flat
unsecured, but nevertheless climbed over a wall into the yard and
then climbed a drainpipe to a balcony, from which he entered the
flat through a door which was open. Having entered the flat, he
broke into the jeweller’s shop through the floor of the flat and the
ceiling of the shop. In these circumstances, assuming that the
defenders were in breach of duty in leaving the flat insecure, I
– 28 –
feel, with all respect, serious doubts about the decision on the
issue of causation, since it is difficult to imagine that an
experienced and practised housebreaker, as Sneddon was held to be,
would have been deterred from entering the flat even if the door
on the balcony had been secured. I am not surprised therefore to
find that Lord Dunpark shared the same doubts (see at p. 40).
Furthermore, I find it difficult to understand why the question of
contributory negligence on the part of the pursuers was not
considered. The pursuers were just as aware of the risk as the
defenders were; yet, although (as was found) an alarm system is
often fitted to the roof of premises such as those of the pursuers,
and is relatively inexpensive, they did not take this precaution.
They seem to have assumed that, although it was their shop which
was likely to attract thieves, they were entitled to rely on the
contractors working above, rather than upon themselves, to prevent
thieves entering through the ceiling of the shop. Indeed if it had
been thought appropriate, in the circumstances, to employ a
watchman to guard the jeweller’s shop, the pursuers would
apparently have considered that that expense should fall not upon
themselves but upon the contractors working above. I do not think
that that can be right.
In truth the case raises a more fundamental question, which
is whether an occupier is under a general duty of care to
occupiers of adjacent premises to keep his premises lockfast in
order to prevent thieves entering his premises and thereby gaining
access to the adjacent premises. Let us suppose that, in Squires
v. Perth and Kinross District Council, 1986 SLT 30, the
defenders had expressly warned the pursuers, by notice, that
extensive work was going to be done to the flat above, and that
this would mean that, for a period of time, scaffolding would be
erected and all the windows of the flat would be removed. Would
it then be objectionable that the pursuers should have to look to
their own defences against thieves, in the light of these
circumstances? I do not think so. Then, should it make any
difference that no such notice was given, but it was obvious what
the contractors were doing? Again, I do not think so. Then,
suppose that the occupiers of the flat above the shop were an
ordinary family and, when they went away on holiday, in all the
hustle and bustle of getting their children and animals and
possessions into their car, they forgot to lock their front door.
While they were away a passing thief, seeing that the flat was
unoccupied because the curtains were drawn, went up and tried the
front door and, finding it unlocked, gained access to the flat and
thence entered the jeweller’s shop below and robbed it. Should
the occupiers of the flat be held liable to the jewellers in
negligence? Again, I do not think so; and I add that I do not
think that it would make any difference that it was well known
that burglars were operating in the neighbourhood. It is not
difficult to multiply these homely examples of cases where a thief
may gain access to a house or flat which is not lockfast – for
example, where an old lady goes out to spend the day with her
married daughter and leaves a ground floor window open for her
cat; or where a stone deaf asthmatic habitually sleeps with his
bedroom window wide open at night; or where an elderly
gentleman leaves his french windows open when he is weeding at
the bottom of his garden, so that he can hear the telephone. For
my part, I do not think that liability can be imposed on an
occupier of property in negligence simply because it can be said
– 29 –
that it is reasonably foreseeable, or even (having regard, for
example, to some particular temptation to thieves in adjacent
premises) that it is highly likely, that, if he fails to keep his
property lockfast, a thief may gain access to his property and
thence to the adjacent premises. So to hold must presuppose that
the occupier of property is under a general duty to prevent thieves
from entering his property to gain access to neighbouring property,
where there is a sufficient degree of foresight that this may
occur. But there is no general duty to prevent third parties from
causing damage to others, even though there is a high degree of
foresight that they may do so. The practical effect is that
everybody has to take such steps as he thinks fit to protect his
own property, whether house or flat or shop, against thieves. He
is able to take his own precautions; and, in deciding what
precautions to take, he can and should take into account the fact
that, in the ordinary course of life, adjacent property is likely to
be from time to time unoccupied (often obviously so, and
sometimes for a considerable period of time) and is also likely
from time to time not to be lockfast. He has to form his own
judgment as to the precautions which he should take, having regard
to all the circumstances of the case, including (if it be the case)
the fact that his premises are a jeweller’s shop which offers a
special temptation to thieves. I must confess that I do not find
this practical result objectionable. For these reasons I consider,
with all respect, that Squires v. Perth and Kinross District
Council, 1986 SLT 30 was wrongly decided.
The present case is, of course, concerned with entry not by
thieves but by vandals. Here the point can be made that, whereas
an occupier of property can take precautions against thieves, he
cannot (apart from insuring his property and its contents) take
effective precautions against physical damage caused to his
property by a vandal who has gained access to adjacent property
and has there created a source of danger which has resulted in
damage to his property by, for example, fire or escaping water.
Even so, the same difficulty arises. Suppose, taking the example I
have given of the family going away on holiday and leaving their
front door unlocked, it was not a thief but a vandal who took
advantage of that fact; and that the vandal, in wrecking the flat,
caused damage to the plumbing which resulted in a water leak and
consequent damage to the shop below. Are the occupiers of the
flat to be held liable in negligence for such damage? I do not
think so, even though it may be well known that vandalism is
prevalent in the neighbourhood. The reason is the same, that
there is no general duty to prevent third parties from causing
damage to others, even though there is a high degree of foresight
that this may occur. In the example I have given, it cannot be
said that the occupiers of the flat have caused or permitted the
creation of a source of danger (as in Haynes v. Harwood [1935] 1
K.B. 146, or in the example of the fireworks which I gave earlier)
which they ought to have guarded against; nor of course were
there any special circumstances giving rise to a duty of care. The
practical effect is that it is the owner of the damaged premises
(or, in the vast majority of cases, his insurers) who is left with a
worthless claim against the vandal, rather than the occupier of the
property which the vandal entered (or his insurers) – a conclusion
which I find less objectionable than one which may throw an
unreasonable burden upon ordinary householders. For these reasons,
I consider that both Lamb v. Camden London Borough Council
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[1981] QB 625 and King v. Liverpool City Council [1986] 1 W.L.R.
890 were rightly decided; but I feel bound to say, with all respect,
that the principle propounded by Lord Wylie in Evans v. Glasgow
District Council, 1978 S.L.T. 17, at p. 19, viz. that there is
“a general duty on owners or occupiers of property … to
take reasonable care to see that it [is] proof against the
kind of vandalism which was calculated to affect adjoining
property,”
is, in my opinion, too wide.
I wish to emphasise that I do not think that the problem in
these cases can be solved simply through the mechanism of
foreseeability. When a duty is cast upon a person to take
precautions against the wrongdoing of third parties, the ordinary
standard of foreseeability applies; and so the possibility of such
wrongdoing does not have to be very great before liability is
imposed. I do not myself subscribe to the opinion that liability
for the wrongdoing of others is limited because of the
unpredictability of human conduct. So, for example, in Haynes v.
Harwood [1935] 1 K.B. 146, liability was imposed although it
cannot have been at all likely that a small boy would throw a
stone at the horses left unattended in the public road; and in
Stansbie v. Troman [1948] 2 K.B. 48, liability was imposed although
it cannot have been at all likely that a thief would take advantage
of the fact that the defendant left the door on the latch while he
was out. Per contra, there is at present no general duty at
common law to prevent persons from harming others by their
deliberate wrongdoing, however foreseeable such harm may be if
the defender does not take steps to prevent it.
Of course, if persons trespass upon the defender’s property
and the defender either knows or has the means of knowing that
they are doing so and that in doing so they constitute a danger to
neighbouring property, then the defender may be under an
affirmative duty to take reasonable steps to exclude them, in the
limited sense explained by Lord Wilberforce in Goldman v.
Hargrave [1967] 1 AC 645, 663-664; but that is another matter.
I incline to the opinion that this duty arises from the fact that
the defender, as occupier, is in exclusive control of the premises
upon which the danger has arisen.
In preparing this opinion, I have given careful consideration
to the question whether P. Perl (Exporters) Ltd, v. Camden London
Borough Council [1984] QB 342, in which I myself was a member
of the Court of Appeal, was correctly decided. I have come to
the conclusion that it was, though on re-reading it I do not think
that my own judgment was very well expressed. But I remain of
the opinion that to impose a general duty on occupiers to take
reasonable care to prevent others from entering their property
would impose an unreasonable burden on ordinary householders and
an unreasonable curb upon the ordinary enjoyment of their
property; and I am also of the opinion that to do so would be
contrary to principle. It is very tempting to try to solve all
problems of negligence by reference to an all-embracing criterion
of foreseeability, thereby effectively reducing all decisions in this
field to questions of fact. But this comfortable solution is, alas,
not open to us. The law has to accommodate all the untidy
– 31 –
complexity of life; and there are circumstances where
considerations of practical justice impel us to reject a general
imposition of liability for foreseeable damage. An example of this
phenomenon is to be found in cases of pure economic loss, where
the so-called “floodgates” argument (an argument recognised by
Lord Blackburn as long ago as 1875 in Cattle v. Stockton
Waterworks Co. (1875) L.R. 10 Q.B. 453, 457, the force of which
is accepted not only in common law countries but also in civil law
countries such as the Federal Republic of Germany) compels us to
recognise that to impose a general liability based on a simple
criterion of foreseeability would impose an intolerable burden upon
defendants. I observe that in Junior Books Ltd, v. Veitchi Co.
Ltd. [1983] 1 AC 520, some members of your Lordships’ House
succumbed, perhaps too easily, to the temptation to adopt a
solution based simply upon “proximity.” In truth, in cases such as
these, having rejected the generalised principle, we have to search
for special cases in which, upon narrower but still identifiable
principles, liability can properly be imposed. That is the task
which I attempted to perform in Leigh and Sillivan Ltd, v.
Aliakmon Shipping Co. Ltd. [1985] Q.B. 350, by identifying a
principle of transferred loss – a principle which has not, so far,
achieved recognition by other members of your Lordships’ House.
As the present case shows, another example of this phenomenon is
to be found in cases where the plaintiff has suffered damage
through the deliberate wrongdoing of a third party; and it is not
surprising that once again we should find the courts seeking to
identify specific situations in which liability can properly be
imposed. Problems such as these are solved in Scotland, as in
England, by means of the mechanism of the duty of care; though
we have nowadays to appreciate that the broad general principle
of liability for foreseeable damage is so widely applicable that the
function of the duty of care is not so much to identify cases
where liability is imposed as to identify those where it is not (see
Anns v. Merton London Borough Council [1978] AC 728, 752, by
Lord Wilberforce). It is perhaps not surprising that our brother
lawyers in France find themselves able to dispense with any such
concept, achieving practical justice by means of a simple concept
of “faute”. But since we all live in the same social and economic
environment, and since the judicial function can, I believe, be
epitomised as an educated reflex to facts, we find that, in civil
law countries as in common law countries, not only are we beset
by the same practical problems, but broadly speaking we reach the
same practical solutions. Our legal concepts may be different, and
may cause us sometimes to diverge; but we have much to learn
from each other in our common efforts to achieve practical justice
founded upon legal principle.
For these reasons I would dismiss this appeal.
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