PURE OMISSIONS AND DUTY OF CARE REVISITED
In the recent England and Wales Court of Appeal (“EWCA”) decision of Rushbond Plc v The JS Design Partnership LLP [2021] EWCA Civ 1889 (“Rushbond v JS Design Appeal”), the EWCA allowed the appeal and held that it was arguable that the case was not a “pure omissions” case.
Brief Facts. We had previously discussed the first instance judgment in an earlier blog post. The facts of case are set out in paragraph 1 of the first instance 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.”
The two strands. The EWCA held that there were two strands of authorities that had to be considered:
1. The first is the strand of cases on “pure omissions”; and
2. The second is the strand of cases on a failure to keep the property secure.
The EWCA discussed the first strand from [20] – [30] Rushbond v JS Design Appeal, and the second strand from [31] – [40] Rushbond v JS Design Appeal.
The appeal. The EWCA then held that, bearing in mind that this was a case of striking out, it was arguable that this was not a “pure omissions” case ([44] Rushbond v JS Design Appeal).
It is important to note that the EWCA made the following statements:
“45. The respondent was a visitor to the appellant's property, present with the appellant's permission. In my view, it is fanciful to suggest that, whilst the sole occupant of the property, trusted with the keys, the respondent owed no duty of care to the claimant to take reasonable precautions as to security. On an application of the ordinary principles of negligence if, for example, during his visit Mr Jeffrey had carelessly tossed away a burning cigarette end which caused a fire that burned down the property, he would arguably be liable in negligence for the consequences.
46. On that basis, the respondent's position on the strike-out can only be that, whilst Mr Jeffrey owed the appellant a duty to take reasonable care not to burn down the property himself, it is not even arguable that Mr Jeffrey – as a visitor at the property, there at his request - owed a duty to take reasonable care not to do or fail to do something which permitted others to burn down the property instead. I consider that such a position is untenable.”
The EWCA also held that based on the facts of the case, the respondent had unlocked the door, deactivated the alarm, and chose not to lock the door or to take any precaution in the vicinity of the door ([50] Rushbond v JS Deign Appeal) – it was therefore at least arguable that these actions had “rendered a secure building insecure” ([51] Rushbond v JS Design Appeal).
The EWCA further held that, while it was not necessary, the EWCA would have found that this case would have fit into the line of authority which may potentially render the respondent liable for the consequences of their failure to take reasonable steps to ensure that the appellant’s property was properly secured (see [67] – [79] Rushbond v JS Design Appeal).
Takeaway. In our previous article, we had stated that the key takeaway was that generally, while the law would not hold a person liable in negligence for pure omissions, there are situations where the person would be held liable, and the assumption of responsibility is a key factor.
This remains true. However, what the EWCA in Rushbond v JS Design Appeal has also made clear is that what amounts to an “omission” may not always so clear cut. While on the facts of the case it may be at least arguably clear that this is not a “pure omissions” situation, in other situations, the facts may not be so clear.
In such cases, parties must ask themselves whether it is a “pure omissions” situation, and, if they are in court / arbitration, whether striking out is the appropriate course of action to adopt.
This publication is not intended to be, nor should it be taken as, legal advice; it is not a substitute for specific legal advice for specific circumstances. You should not take, nor refrain from taking, actions based on this publication. Chancery Law Corporation is not responsible for, and does not accept any responsibility for, any loss or damage that may arise from any reliance based on this publication.