[2021] EWCA Civ 1889

This negligence claim arose out of damage caused by an intruder who, it was said, gained access as a result of a breach of duty by JSD. JSD applied to strike out the claim, which meant that the CA considered the case on the assumption that the critical factual material presented by Rushbond was correct.

The property was an empty cinema building in Leeds. JSD were advising a firm about the suitability of the premises for leisure use. Representatives of JSD had previously made a number of visits accompanied by marketing agents. On this occasion, the representative went alone and was given the keys and alarm code. Rushbond said that JSD owed them a duty of care to take reasonable security precautions whilst at the property and that, during the visit, which lasted an hour, an intruder entered through an unlocked (and possibly open) door and was not detected in the dark. After the JSB team left, later that day, a fire was started by an intruder and the interior was destroyed.

LJ Coulson noted that JSD was a visitor to Rushden’s property, present with Rushden’s permission. It was therefore “fanciful” to suggest that, whilst the sole occupant of the property, trusted with the keys, JSD owed no duty of care to Rushden to take reasonable precautions as to security. The Judge gave the example of if, for example, during their visit, the JSD representative had carelessly tossed away a burning cigarette end which caused a fire that burned down the property, then they would arguably be liable in negligence for the consequences.

Here, during questioning by the Judge, JSD had agreed that, if it had been said to JSD when the keys were handed over: “don’t forget to lock the door”, and JSD failed to do so, there would arguably have been a relevant duty and a breach. The Judge could not accept that the failure expressly to remind someone to do something which, on Rushden’s case, was so obvious, could make the critical difference on an application to strike out. Therefore, on an ordinary application of general principle, all the necessary ingredients of a negligence action were in place here: duty, foreseeability, breach, and causation.

It was suggested that this was a “pure omissions” case, namely one where the defendant did nothing, or nothing of any legal relevance to the claim. For example, cases where a defendant property owner did nothing, simply owning a property which intruders got into. Here, there would be no duty of care owed to the adjoining owners. These could be contrasted with cases where the defendant was involved in a particular activity, and it was the negligent carrying out of that activity that gave rise to the claim.

Here, JSD was involved directly in the activity which allowed the intruder to enter the property. The representative unlocked the door and deactivated the alarm. Then, once inside, that representative chose not to lock that door with the snib lock, or to take any other precaution in the vicinity of the door. It was left unlocked/open, and unguarded.

On the pleaded case, it was therefore because of these acts and omissions that the door was unlocked. JSD had not just provided the opportunity for the intruder to get in, they positively made things worse. The question of negligence was left for the hearing, but it could not be said that JSD did not owe a relevant duty of care because such a duty would be based on “pure omissions”. The failure to lock or otherwise guard the door after entering the property was a central part of the alleged activity that allowed the intruder into the property.