PURE OMISSIONS AND DUTY OF CARE
Would you be liable in negligence if you are given a key to inspect a house, and because you left the door open, someone else entered the house and started a fire, causing damage? Rushbond Plc v The J S Design Partnership LLP [2020] EWHC 1982 (TCC) (“Rushbond v JS Design”) deals with the above scenario, and makes clear that, in general, pure omission cases are not so easy to succeed.
Brief Facts. The facts of Rushbond v JS Design are set out in paragraph 1 of the judgment, which we duplicate below:
“This claim arises out of a fire that occurred in 2014 at a property owned by the Claimant. An architect employed by the Defendant, accompanied by a structural engineer and a quantity surveyor, carried out an inspection of the property on behalf of a potential purchaser. The Claimant's case is that the architect left the access door unlocked for a period of about one hour whilst they were inside the building. It is not alleged that the visitors started the fire. The Claimant's case is that one or more intruders were able to gain access to the property through the unlocked door and, once inside the building, started the fire. Damages of £6.5 million are claimed in respect of damage caused by the fire.”
General position. The Court in Rushbond v JS Design first highlighted that the general rule is that the common law does not impose liability via negligence in relation to pure omissions at [26] – [27] Rushbond v JS Design, though the Court was careful to emphasize that there are exceptions, such as those mentioned in [28] – [37] Rushbond v JS Design.
On the facts. On the facts of Rushbond v JS Design, the Court held that since the harm was not caused by the Defendant but by an unconnected third party, and the Defendant did not create the fire nor provide the means by which the fire started, but simply increased the risk that a third party may enter the building, this was a pure omissions case ([40] Rushbond v JS Design).
The Court also rejected that the Defendant’s possession of the key caused the Defendant to assumed responsibility such that the Defendant should be liable at [41] Rushbond v JS Design.
What is important to note is that Rushbond v JS Design is an application for striking out and/or summary judgment.
The fact that the Court in Rushbond v JS Design granted the application meant that on the facts, the Court found that the Statement of Case disclosed no reasonable grounds for bringing the claim and that the Claimant has no real prospect of success.
Takeaway. The key takeaway from Rushbond v JS Design is that while generally, the law would not hold a person liable in negligence for pure omissions, there are situations where the person would be held liable.
The key factor appears to be whether a person has assumed responsibility. The question of assumption of responsibility is highly fact sensitive.
In this regard, at [41] Rushbond v JS Design, the Court appeared to suggest that had the Defendant been a fire or security expert, or a lettings or managing agent for the property, or was entrusted with possession of the property during construction works, then the application may not have been granted.
And if Rushbond v JS Design was a situation where the owner had specifically informed the Defendant that there was a need to lock the door due to a spate of arson cases arising from arsonists entering unlocked houses, the results may well be very different.
Tags: Tort law; Negligence; Pure omissions
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