LORD JUSTICE WALLER: This is an appeal from a decision of Mr Barry Chedlow, Q.C., sitting as a Deputy High Court Judge and given on 25th March, 1982. He awarded damages to the plaintiffs of £12,338.93, arising out of a theft by unknown third parties at their premises at 142, Southampton Row. The appellants own 142, Southampton Row and also 144, Southampton Row, 144 being premises divided into flats. The respondent company is the tenant of 142. As part of the premises let to the respondents there is a basement which was used by the respondents for the storage of clothing in connection with their business and at the relevant time was used for the storage of a quantity of Scottish sweaters. As part of I44 one of the flats was an unoccupied basement flat adjoining the basement of 142 separated by an eighteen inch wall and with no direct communication with it. The entrance to 144 was through a double doorway into a lobby with another double door at the other side, then a short distance across the ground floor and then down some stairs into a light well the floor of which was at basement level. The access to the basement flat was up some steps at the opposite end of the light well into a corridor branching off the main corridor. There were two windows from part of the respondent's premises which looked on to the light well but these windows were barred and wired with a burglar alarm.
The evidence was that there were no locks on the front door at the time of the burglary, that there had been no catch on the door at the top of the stairs leading to the bottom of the light well and that the door leading into the basement flat was off its hinges. Furthermore, tramps and vagrants had been seen in the light well. There had been a number of complaints to the appellants about the lack of security at the flats and there had also been several burglaries but little or nothing had been done about this up to the 22nd May, 1977- Over the week-end of 22nd May, 1977, thieves knocked a hole into the common wall between the vacant flat in the basement of 144 and the basement of 142, the wall being an eighteen inch thick brick wall, and through this hole a slim person was able to climb and over 700 garments were stolen. The judge held that there was an absence of reasonable care on the part of the respondents in that the appellants had continuously neglected to supply a secure structure and should have known that vandals, tramps and undesirables were continuously on their structure and therefore it should have been foreseen that damage to property would ensue. He held that the simplest inspection would have revealed a situation which any prudent landowner should not have allowed to have continued. The judge accordingly held that there was an absence of reasonable care and awarded damages to the respondents.
Mr Turner, on behalf of the appellants, submitted that the learned judge had applied the wrong test in that he had considered the landlord's duty towards those lawfully in their own premises and had not distinguished that duty from the duty of the occupier of one set of premises to the occupier of adjoining premises. He submitted that the defendants were not under any duty to occupiers of adjoining property or alternatively if they were under a duty it would be to refrain from doing acts which could be foreseen to be very likely to cause damage and they were not in breach of such duty.
Mr Browne on behalf of the respondents submitted that there was a duty of care and that the appellants owed such duty even though the immediate cause of the damage was the act of third parties. He submitted that the appellants' knowledge of the valuable goods held by the respondent in his storeroom, the presence of unauthorised persons in No. 144 and the state of the doors and locks upon the doors were such that the breaking in and stealing was foreseeable and accordingly the appellants were liable.
The facts of this case raise certain questions of principle. If the judgment is right the appellants are liable for the acts of third parties whose identity is unknown. Furthermore although on the facts of this case there was very considerable carelessness on the part of the appellants' staff, if the appellants are liable to the defendants it would follow that in many cases the duty of care imposed upon householders to their neighbours would be very different from that which they have always been understood to be.
The first question to consider is in what circumstances a defendant will be responsible for the acts of a third party. In Dorset Yacht Co. v. Home Office (1970) AC 1004 at 1055, Lord Pearson considering this problem in relation to the facts of that case, the case being one where Borstal boys escaped from their supervisors said: "Act of third party: In Weld-Blundell v. Stephens (1920) A.C 956, 986, Lord Sumner said: "In general (apart from special contracts and relations and the maxim respondeat superior), even though A is in fault, he is not responsible for injury to C which B, a stranger to him, deliberately chooses to do."
In Smith v. Leurs, 70 C.L.R. 256-262, Dixon J. said:
" ... 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. It appears now to be recognised that it is incumbent upon a parent who maintains control over a young child to take .reasonable care so to exercise that control as to avoid conduct on his part exposing the person or property of others to unreasonable danger. Parental control, where it exists, must be exercised with due care to prevent the child inflicting intentional damage on others or causing damage by conduct involving unreasonable risk of injury to others."
In my opinion, this case falls under the exception and not the rule, because there was a special relation. The Borstal boys were under the control of the defendants' officers, and control imports responsibility. The boys' interference with the boats appears to have been a direct result of the defendants' officers' failure to exercise proper control and supervision. Problems may arise in other cases as to the responsibility of the defendants' officers for acts done by Borstal boys when they have completed their escape from control and are fully at large and acting independently. No such problem faces the plaintiffs in this case."
We were also referred to the case of Hosie v. .Arbroath F.C. (1978) S.L.R. 122, where the football club were held liable for injuries caused when spectators broke through a defective gate and caused injury to one man. Thus parents may be responsible for the acts of their children, the relationship of Borstal staff to Borstal boys on an exercise on an island may make the staff responsible, or a football club may be responsible for the actions of spectators whom they have invited to their premises. But no case has been cited to us where a party has been held liable for the acts of a third party when there was no element of control over the third party. While I do not take the view that there can never be such a case I do take the view that the absence of control must make the court approach the suggestion that there is liability for a third party who was no± under the control of the defendant with caution.
The next question to consider is the nature of the duty of the appellant as occupier of No. 144 to the respondents as occupiers of the adjoining property No. 142. In Dorset Yacht Co. v. Home Office, the case to which I have already referred, where the House of Lords held that the Home Office were liable when seven Borstal young offenders escaped and damaged a yacht in trying to escape from Brownsea Island where they were. Lord Reid, at page 1030 said:
"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' 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 is not altogether clear from that passage what kind of possibility or probability Lord Reid had in mind, but at page 1034 Lord Morris said:
"On these facts a normal or even modest measure of prescience and prevision must have led any ordinary person, but rather specially an officer in charge, to realise that the boys might wish to escape and might use a yacht if one was near at hand to help them do so. That is exactly what it is said that seven boys did. In my view, the officers must have appreciated that either in an escape attempt or by reason of some other prompting the boys might interfere with one of the yachts with consequent likelihood of doing some injury to it. The risk of such a happening was glaringly obvious. The possibilities of damage being done to one of the nearby yachts (assuming that they were near-by) were many and apparent. In that situation and in those circumstances I consider that a duty of care was owed by the officers to the owners of the nearby yachts. The principle expressed in Lord Atkin's classic words in his speech in Donoghue v. Stevenson (1932) AC 562, would seem to be directly applicable. If the principle applied, then it was incumbent on the officers to avoid acts or omissions which they could reasonably foresee would be likely to injure the owners of yachts. They were persons so closely and directly affected by what the officers did or failed to do that they ought reasonably to have been in the contemplation of the officers".
And Lord Diplock, at page 1070, said:
"I should therefore hold that any duty of a Borstal officer to use reasonable care to prevent a Borstal trainee from escaping from his custody was owed only to persons whom he could reasonably foresee had property situate in the vicinity of the place of detention of the detainee which the detainee was likely to steal or to appropriate and damage in the course of eluding immediate pursuit and recapture. Whether or not any person fell within this category would depend upon the facts of the particular case including the previous criminal and escaping record of the individual trainee concerned and the nature of the place from which he escaped."
Lord Diplock, in the passage I have quoted, restricts the foresee-ability and Lord Morris describes the risk as glaringly obvious. These quotations do indicate that in circumstances in which it is sought to make somebody liable for the actions of a third party it would appear to require a fairly high degree of foreseeability.
This question was considered by the Court of Appeal in Lamb v. London Borough of Camden (1981) QB 625. In that case the local council had broken a water main and as a result the plaintiff s house subsided and the walls cracked. Sometime after the house had become empty, squatters went into the house and did serious damage to the house. The Court of Appeal had to consider whether or not that damage was too remote and unanimously came to the conclusion that it was too remote. The reasoning of each of the judges differed somewhat. I prefer that of Oliver L.J., who after quoting the passage which I have already quoted from Lord Reid's speech, when considering precisely what Lord Reid meant, said at page 642:
"But the question is not what is foreseeable merely as a possibility but what would the reasonable man actually foresee if he thought about it, and all that Lord Reid seems to me to be saying is that the hypothetical reasonable man in the position of the tortfeasor cannot be said to foresee the behaviour of another person unless that behaviour is such as would, viewed objectively, be very likely to occur."
And then, at page 643:
"The test of remoteness is said to be the same as the test of duty in negligence: see Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd. (The Wagon Mound) (l96l) A.C. 388. If the instant case is approached as a case of negligence and one asks the question, did the defendants owe a duty not to break a waterpipe so as to cause the plaintiffs' house to be invaded by squatters a year later, the tenuousness of the linkage between act and result becomes apparent. - 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. Whilst therefore, I am not altogether in accord with the official referee's reasoning, I think that he came to the right conclusion in the light of his finding of fact, which has not been challenged. Accordingly, the appeal should, in my judgment, be dismissed."
And at page 644 Oliver L.J. finishes:
"There may, for instance, be circumstances in which the court would require a degree of likelihood amounting almost to inevitability before it fixes a defendant with responsibility for the act of a third party over whom he has and can have no control".
I agree with Oliver L.J. that the foreseeability required to impose a liability for the acts of some independent third parties requires a very high degree of foreseeability. Adapting the words of Lord Atkin, "ought the appellants to have had the respondents, as occupiers of No. 142, in contemplation as being affected when directing their minds to the question of repairing the doors and locks of No. 144". It is not sought here to make the appellants liable for any act, it is sought to make the appellants liable for an omission to act. Can it be said that the appellants ought reasonably to have had in contemplation the fact that third parties would go into the empty basement of 144, make a hole in an eighteen inch wall large enough for somebody to climb through and steal a large number of articles of clothing from within? I would unhesitatingly answer "No". Whether or not an occupier of a house can ever be liable to a neighbour for an omission to act is doubtful. I do not however have to consider whether such a case may possibly arise. It is sufficient to say that in this case I am satisfied that there was no breach of duty by the appellants to the respondents and accordingly I would allow this appeal.
LORD JUSTICE OLIVER: The question raised by this Appeal is solely one of the Defendants' common law liability to the Plaintiffs for the tort of negligence. No contractual duty is alleged and the fact that, in addition to having the control of the common parts and the basement flat in No. 144 Southampton Row, the Defendants were also the Plaintiffs' landlords in respect of the premises at No. 142 is irrelevant save in so far as it supports the suggestion that the Defendants were familiar with the geographical features of both premises and that they were or should have been aware of the possible risk of intrusion into No, 142 by trespassers who had first entered No. 144. Thus the question posed is a perfectly general one — does a landowner owe any, and if so what, duty to an adjoining occupier to secure his land against the entry of trespassers who may damage his neighbour's property? The learned deputy-judge held that there was, in the circumstances of this case, a duty in the Defendants to take reasonable care to ensure that their premises were secured against trespassers and the basis of his decision was that since it would be reasonably foreseen that trespassers entering the defendants' premises might include (as they evidently did in fact) thieves interested in securing illegal access to the adjoining premises, the case fell squarely within the classic statement of Lord Atkin in Donoghue v. Stevenson (1932) AC 562 at page 580: "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour".
The Defendants have, of course, done nothing; so the case is one, not of an act, but of an omission. They simply omitted to keep and maintain an effective lock on the front door giving access to No. 144 and they similarly omitted to keep and maintain effective internal barriers such as would or might have prevented trespassers obtaining access to the rear wall of the Plaintiffs' store-room. It cannot be asserted that those omissions, by themselves, caused any injury to anyone. They merely enabled some unknown third party over whom the Defendants had no control to effect an unlawful entry upon the Defendants' premises and thence to effect an equally unlawful entry upon the plaintiffs' premises. It would, in fact, be more accurate to say that the omissions failed to impede such an entry rather than that they enabled it to take place, for it is by no means certain that even an effective lock on the outer door would have prevented an incursion by a really determined gang of thieves. Thus the assertion that the Defendants are liable for the damage which the Plaintiffs sustained rests upon the proposition that the breaking into the Plaintiffs' premises was the natural and probable consequence of the Defendants' failure to secure their own premises from invasion.
Mr Turner, Q.C., on behalf of the Appellants, has forcefully submitted that the learned Judge was wrong in two essential respects. First, he submits that there was no foundation in law for the duty-attributed to the Defendants — in broad terms a general common law duty to control the acts of an independent third party cannot exist apart from some special relationship with the third party, which does not exist here.
Secondly, in the absence of such a relationship, a damage arising from the act of an independent third party is, in any event, too remote. Speaking for myself, I think that the question of the existence of a duty and that of whether the damage brought about by the act of a third party is too remote are simply two facets of the same problem; for if there be a duty to take reasonable care to prevent damage being caused by a third party then I find it difficult to see how damage caused by the third party consequent upon the failure to take such care can be too remote a consequence of the breach of duty. Essentially the answer to both questions is to be found in answering the question, in what circumstances is a Defendant to be held responsible at common law for the independent act of a third person which he knows or ought to know may injure his neighbour? The learned deputy judge, as I read his judgment, deduced from the authorities the general proposition that where the act of the third person of which A complains is something which is likely to occur if B does or omits to do a particular act then B owes a duty to A to refrain from or to do that act. The foundation for the Plaintiffs' case and for the learned deputy judge's conclusion is the speech of Lord Reid in the case of Dorset Yacht Co. v. Home Office (1970) AC 1004 and, in particular, this passage at page 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 more 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 which is likely to happen as a result of the wrongful or careless act of the defendant".
In Lamb v. Camden Borough Council (1981) 1 QB 625, I ventured to suggest that in this passage Lord Reid was seeking to do no more than to glace a qualification or limitation, in cases of third party intervention, on the more general proposition that he who does or omits to do something is responsible for the reasonably foreseeable consequences of his act or omission, the suggestion (as I thought) being that in such a case a consequence should not be regarded as reasonably foreseeable unless it was something which was either likely or very likely to happen. Whether, however, that be right or wrong, the passage quoted does not appear to me, when read in its full context, to be authority for the more general proposition that wherever particular conduct of a third person is likely to take place if something is done or omitted there arises from that likelihood alone a duty to refrain from or to do (as the case may be) the relevant act. That is, as it seems to me, the general proposition which the learned deputy judge deduced from the authorities to which he referred and which led him to the conclusion that the Defendants were liable for the damage which the Plaintiffs suffered in this case. He observed:
"I think that if the Defendants continuously neglect to supply a secure structure and know, or should know, that vandals, tramps and undesirables are continuously on their structure it can fairly be foreseen that damage to property will ensue". It can be seen from this that the learned deputy-judge is presupposing a duly "to supply a secure structure"; and when the judgment is analysed it is found that there is, in fact, no support for the existence of the duty apart from the knowledge that the structure is frequented by trespassers. The foreseeability of damage to property is, by itself, being treated as the foundation of the duty. Thus the first question to be answered is whether the Dorset Yacht case is authority for the proposition. In my judgment, it clearly is not. All of their lordships who constituted the majority recognised that there was, apart from special relationships, no general duty to avoid or inhibit conduct of third parties which foreseeably may lead to damage. Lord Reid at page 1027 observed that "when a person has done nothing to put himself in any relationship with another person in distress or with his property, mere accidental propinquity does not require him to go to that person's assistance. There may be a moral duty to do so, but it is not practicable to make it a legal duly".
Lord Morris, at page 1034 observed "it cannot be, therefore, that in all circumstances where certain consequences can reasonably be foreseen a duty of care arises. A failure to take some preventive action or rescue operation does not of and by itself necessarily betoken any breach of a legal duty of care". (See also Lord Pearson at pp. 1054 F-G and 1055 F and Lord Diplock at page 1060 E-H).
What gave rise to the duty on the Dorset Yacht case was the special relationship which existed between the Defendant and the third person who inflicted the damage, inasmuch as the Defendants had both the statutory right and the statutory duty to exercise control over those persons. This was I think, implicit in the speech of Lord Reid, and it was expressed in the speeches of Lord Morris, Lord Pearson and Lord Diplock, all of whom quoted and relied upon the judgment of Sir Owen Dixon in Smith v. Leurs (1945) 70 C.L.R. 256 at 262, where he said: "It is, however, exceptional to find in the law a duty to control another's action 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". Lord Diplock, indeed, went further, in that he envisaged — at any rate on the facts of that case — a special relation also between the defendant and the person injured arising from the particular susceptibility of that person to risk of injury (see p. 1070 D-E).
The Dorset Yacht case does not, therefore, in my judgment support the conclusion at which the learned deputy judge arrived, unless it can be said that there was here some special relation taking the case out of the general rule which excludes liability for the acts of independent third parties. Mr Browne has submitted that that special relation is to be found from a number of factors combined that is to say (a) geographical propinquity (b) the Defendants' knowledge that the Plaintiffs used their premises to store goods which might be attractive to thieves (c) the Defendants' knowledge or means of knowledge that there had been frequent incursions by trespassers (including burglaries in some of the flats in No. 144) and (d) the relatively simple steps required to impede the entry of trespassers by fitting an effective lock on the front door. These factors, however, whilst they are, no doubt, relevant as regards remoteness of damage and may possibly be said to give rise to a relation between the Defendants and the Plaintiffs, go nowhere towards establishing the sort of relation referred to by the majority in the Dorset Yacht case and clearly envisaged by Sir Owen Dixon in the passage from his judgment in Smith v. Leurs referred to above, namely a relation between the defendant and the third party for whose act he is said to be responsible. If, therefore, support is to be found for the learned deputy-judge's broad proposition it must, in my judgment, be looked for elsewhere. He relied, in addition to Dorset Yacht, on Hosie v. Arbroath Football Ltd. (1973) S.L.T. 122 and Evans v. Glasgow District Council (1978) S.L.T. 17. I do not, for my part, find the former of these of very much assistance. It was a claim under the Occupiers Liability (Scotland) Act I960 and there was no question but that the defendants there owed a duty to the plaintiff to take reasonable care to keep their football ground and its entry and exit facilities safe, by inter alia, ensuring that the gates were sufficiently strong to withstand pressure from crowds. The question at issue was whether that duty extended to deliberate interference by unruly elements, the occurrence of which was clearly not only foreseeable but, having regard to the known habits of football crowds, likely. The case does not, however, help in the present context because there clearly was there a special relation both between the defendants and those who damaged the plaintiff and between the defendants in the plaintiff, himself, inasmuch as both the plaintiff and his assailants were the defendants' invitees for whom as occupiers of the ground the defendants had to assume responsibility. The same may I think be said of the case of Scott's Trustees v. Moss (1889) 17 R (Ct of Sess.) 32, referred to by Lord Reid in the Dorset Yacht case. If, for your own commercial purpose, you invite or entice a crowd to assemble in circumstances where you can reasonably foresee that they are likely to damage the plaintiff, it is not difficult to infer that the circumstances of the enticement or invitation creates the special relation which grounds responsibility. That however is a far cry from a case where the defendant does nothing in the way of issuing an invitation but merely takes insufficient steps to protect himself from invasion of his own rights. The proposition that because I have failed adequately to protect myself against X's wrongdoing I therefore become responsible for the further wrong which X chooses to do to Y is one on which is, on the face of it, startling. Mr Browne, however, submits that this consequence flows from the other case relied on by the learned judge — Evans v. Glasgow District Council. There the Defenders had demolished premises which adjoined the pursuer's premises (also leased from the defenders) and in doing so had damaged the locks securing the pursuer's doors, which they replaced with inadequate locks. The pursuer suffered loss by reason of (a) theft of goods by persons who broke the new and inadequate locks, (b) fire caused by vandals dropping lighted material through gaps left in the floorboards above the pursuer's premises and (c) escape of water from the defenders' premises caused by vandals interfering with the plumbing thereon. The question (expressed in terms of English law) was whether the allegation to this effect in the pleading were demurrable. In fact the action was dismissed on other grounds, which turned upon an exclusion clause in the pursuer's lease, but the defender's claim that the allegations were irrelevant failed, Lord Wylie, the Lord Ordinary, observing — "I accept the submission of senior counsel for the defenders that there is accordingly a very strong presumption that no such duty exists in law. On the other hand, in such a situation, I think that the Court is thrown back on first principles, and it cannot be ignored that, in the words of Lord Macmillan in Donoghue v. Stevenson: 'the categories of negligence are never closed.' In the circumstances of the present case, on averment, there is the all-important factor that the defenders were well aware that both the premises occupied by the pursuer were located in areas where vandalism was likely to take place ..... In these circumstances ..... 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 choose 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". The duty thus stated is, of course, extremely wide, but quite apart from the fact that the case is not binding upon this Court, I find some difficulty in following it. In the first place, it was decided before Lamb's case, with which, as I think, it is in conflict. Moreover, perhaps somewhat surprisingly, it seems to have been decided without reference to all the Dorset Yacht case. Quite apart from this, however, the facts were very different. The defenders had actually altered the state of their adjoining premises in a way which had rendered the pursuer's premises more vulnerable than they would normally have been; they had done damage to the pursuer's premises which had not been properly repaired, and the fire and water damage, albeit created by trespassers, would (at any rate in English law) have prima facie given rise to a liability in nuisance in any event (Sedleigh-Denfield v. O'Callagan (l940) A.C. 880). Furthermore, it has to be borne in mind that the application was, effectively, a striking-out application and the only question which the Court had to decide was whether the case was sufficiently arguable to justify its going to trial. This indeed appears a little later in Lord Wylie's judgment, where he says: "Notwithstanding two substantial amendments, counsel for the pursuer did not seek to argue more than that enough had been averred to justify an inquiry into the facts and in my view the pleadings qualify for that".
In the circumstances, therefore, I do not find in this case any-substantial support for the wide proposition for which Mr Browne contends and upon which the learned deputy-judge appears to have relied. There are, of course, circumstances where, without any special relation between the defendant and the third party tortfeasor, a duty of care in relation to the acts of independent third parties may arise as a result of a relationship between the plaintiff and the defendant. Such a duty may be and frequently is assumed as a matter of contract, see for instance Stansbie v. Troman (1948) 2 K.B. 48, where the duty of care was an implied terms of the defendants engagement to decorate the plaintiff's house.
There are, however, no such circumstances that I can see in this case. Mr Browne, in a final attempt to bring himself within Dorset Yacht, has submitted that there was indeed, in this case, the necessary special relationship arising from control and he arrives at this as I understand his submission by this process. A lock on the front door of 144 would make entry by trespassers more difficult. The Defendants could have fitted such a lock. If they had done, trespassers could not have entered without breaking the lock. Therefore the thieves who entered the Plaintiff's premises could not have so entered without breaking the Defendants' lock. Therefore the thieves were under the Defendants' "control". The proposition has only to be thus stated to be seen to be fallacious and would ultimately lead to the further proposition that the Borstal boys in the Dorset Yacht case were under the control of the Yacht company because the yacht could have been made more secure against theft than in fact it was.
Speaking for myself, I am unable to see here any circumstances from which there could properly be inferred any duty upon the Defendants so to protect their own premises as to prevent trespassers from entering the Plaintiffs' premises beyond the fact that such entry was, as it plainly was, a foreseeable possibility. In my judgment that is not, by itself, sufficient to raise the duty for which the Plaintiff contends. Indeed the contrary position would, I think, lead to the most startling and far-reaching consequences. Not only would every owner of a semi-detached or terrace house have a duty to every adjoining owner to secure his premises against entry but the extent of the duty would depend upon the use that the adjoining owner chose to make of his premises. The more valuable the contents, the greater the temptation and the greater the risk of entry. The greater the risk of entry, the higher the standard of reasonable care. In fairness to the learned deputy-judge he was, I think, put in a difficult position by a concession made in the Court below and to which he refers in his judgment, for it was, as I understand it, conceded that if the thieves had entered the Plaintiffs' store-room through the windows overlooking the light well on the Defendants premises or through a door hypothetically supposed to open onto that light-well, the Defendants would have been liable. If that concession stood, then for my part I would find it difficult to say that the mere fact that entry was effected in a different and perhaps more unusual way could render the damage too remote; and with that concession before him I regard it as not altogether surprising that the learned deputy-judge reached the conclusion that he did. Mr Turner, however, makes (and in my judgment rightly makes) no such concession in this court.
For the reasons which I have endeavoured to state, I too would allow this appeal.
LORD JUSTICE ROBERT GOEF: The facts of the present case, and the submissions of counsel, have been set out by Waller L.J. in his judgment; and I need not repeat them. The crucial question in the case, as it seems to me, is whether an occupier of property owes a duly of care to owners and users of neighbouring property to prevent third persons from entering his property who might thereby obtain access to the neighbouring property and there commit theft.
Nowadays, following the statement of principle by Lord Wilberforce in Anns v. Merton London Borough Council (1978) AC 728 at pp. 751-2, the question has to be approached in two stages.
"First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter — in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise ..."
There may well be cases in which it can be said that the occupier of property can reasonably foresee that, if he leaves his property unprotected, thieves may enter and thereby gain access to neighbouring property. For example, it may be notorious that burglars are operating in a certain part of a town; and an occupier of premises may reasonably foresee that, if he goes away for a weekend and leaves his house unprotected — perhaps if it is empty or, to take an example considered in argument, if he always leaves a window open for his cat — a burglar may enter and thereby work unmolested over the weekend to gain access to the house next door where there is a valuable collection of pictures. Even so, in my judgment, there are considerations in such circumstances which ought to negative the broad duty of care for which the Respondents' counsel contended.
The vital feature in the type of case under consideration is, as I see it, that the Respondents are seeking to render the Appellants liable in negligence for the wrongdoing of a third party. Now there may indeed be circumstances where a person may be liable for a third party's wrongdoing. He may of course be liable in contract (see Stansbie v. Troman (1948) 2 K.B. 48); he may be liable under the Occupiers Liability Act — for example, where he invites a crowd of persons onto his land and part of his premises, designed to control the crowd, are unfit for that purpose and collapse, with the result that the plaintiff is injured (see Hosie v. Arbroath Football Club Ltd. (1978) S.L.T. 122); he may be liable in nuisance, if he causes or permits persons to gather on his land, and they impair his neighbour's enjoyment of his land (cf. Attorney-General v. Corke (1933) 1 Ch. 89, though that case was expressed to be decided on the principle in Rylands v Fletcher (1868) LR 3 HL 330); and he may be vicariously liable for the third party's wrongdoing. He may even be liable in negligence, when the wrongdoer is a person who, by virtue of a special relationship, is under his control: see Home Office v. Dorset Yacht Co. Ltd. (1970) AC 1004. Speaking for myself, I do not rule out the possibility that there are other circumstances in which a person may be liable in negligence for the wrongdoing of a third party. This is a matter which this Court considered recently in Paterson Zochonis Ltd. v. Merfarken Packaging Ltd. (1983) F.S.R. 273, and which I need not therefore dwell upon in this judgment. In particular, I have in mind certain cases where the defendant presents the wrongdoer with the means to commit the wrong,-in circumstances where it is obvious or very likely that he will do so — as, for example, where he hands over a car to be driven by a person who is drunk, or plainly incompetent, who then runs over the plaintiff (cf. Ontario Hospital Services Commission v. Borsoski (1974) 54 D.L.R. 3d. 339). But such cases are very different from the present case, where the allegation is that the Appellants failed to exercise reasonable care to prevent a third party from causing damage to the Respondents. In Smith v. Leurs (1945) 70 C.L.R. 256, in a passage which was cited with approval in Home Office v. Dorset Yacht Co. Ltd., Dixon J. (as he then was) said (at pp. 261-2):
"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."
It is of course true that in the present case the Respondents do not allege that the Appellants should have controlled the thieves who broke into their storeroom. But they do allege that the Appellants should have exercised reasonable care to prevent them from 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. If the Scottish case of Evans v. Glasgow District Council (1973) S.L.T. 17 is to be understood as reaching any such conclusion, then I (associating myself with the observations of Oliver L.J. on that case) would, with all respect, not be prepared to follow it. Indeed, the consequences of accepting the Respondents' submission in the present case are so startling, that I have no hesitation in rejecting the suggestion that there is .a duty of care upon occupiers of property to prevent persons from entering their property who might thereby obtain access to neighbouring property. Is every occupier of a terraced house under a duty to his neighbours to shut his windows or lock his door when he goes out, or to keep access to his cellars secure, or even to remove his fire escape, at the risk of being held liable in damages if thieves thereby obtain access to his own house and thence to his neighbour's house? I cannot think that the law imposes any such duty.
For these reasons, I too would allow the appeal.
ORDER: Appeal allowed with costs. Leave to appeal to the House of Lords, refused.
