In the case of Harrison and ors v Maison Blanc Ltd and ors, the Court of Appeal last week considered whether a surveyor undertaking an inspection of a property owes a duty of care to third parties.
The claim arose out of injuries sustained by the Claimants when the fascia attached to the front of a shop on Putney High Street collapsed on them. Two of the Claimants were seriously injured. Maison Blanc, the occupier of the shop, settled the Claimants' claim and then brought a claim for contribution against Active Commercial, on the basis that the collapse had been caused by Active's actions in removing part of the support for the fascia and increasing the load on it when carrying out shop-fitting works on Maison Blanc's behalf, and Cluttons, on the basis that they should have identified that the front of the property was in a dangerous condition when they inspected it about three months prior to the collapse.
Cluttons came to inspect the property because Maison Blanc had made a complaint regarding problems in operating the awning attached to the fascia. Maison Blanc suggested that these problems resulted from damage caused by a contractor for whom it said Cluttons, as agent for the landlord, were responsible. Following their inspection, Cluttons wrote to Maison Blanc to indicate what they thought had caused the problem. Further correspondence passed between the parties regarding fixing the awning, but in the end Maison Blanc agreed that it would get its own contractors to address the problem. Shortly after this, the awning collapsed.
At trial, applying the decisions in Caparo Industries plc v Dickman and Bank of Credit and Commerce International (Overseas) Ltd v Price Waterhouse (No. 2), the Judge held that Cluttons owed duties of care to both the Claimants and Maison Blanc and also found that Cluttons had breached those duties in failing to notice that the front of the property was in a dangerous condition and to report this to Maison Blanc. He found that this breach had caused the Claimants' and Maison Blanc's losses and apportioned liability between Active and Cluttons 89:11. Cluttons appealed.
The Court of Appeal noted that the question of whether Cluttons owed a duty of care to members of the public could not be answered without taking into account the circumstances in which they came to inspect the awning. Of particular significance was the role in which Cluttons were acting, which was as agents for the landlord in connection with a complaint by Maison Blanc, rather than as Maison Blanc's surveyor.Cluttons' inspection was for the limited purpose of determining whether their client had any liability to Maison Blanc and had nothing to do with the safety of passers-by. In these circumstances, there was not a sufficient degree of proximity between Cluttons and the Claimants to give rise to a duty of care.
The Court then considered whether Cluttons owed a duty of care to Maison Blanc.The Court said that the evidence did not support the Judge's finding that Cluttons knew that Maison Blanc would rely on them, or that it was reasonable for Maison Blanc to do so. It said that the imposition of a duty of care would be wrong when the relationship between Maison Blanc and Cluttons was essentially adversarial. It therefore held that Cluttons did not owe a duty of care to Maison Blanc either.
This Judgment does not involve any new principles of law but rather the application of existing principles as to when a party will owe a duty of care to third parties.It is a welcome reminder that the circumstances in which the Courts will impose on a party a duty of care to someone who is not that party's client are tightly circumscribed and will not readily be expanded. It is also a useful reminder of the need to look closely at the relationship between a party and those to whom he is alleged to owe a duty of care, to see whether the requirements of foreseeability and proximity exist, before moving on to consider whether it would be just and equitable to impose such a duty. Where the parties are in what is essentially an adversarial relationship, it is unlikely that a Court will conclude that a duty of care exists, either to the third party or the public at large.