Scottish Court of Session Decisions

At advising on 11th July 1985,—

LORD JUSTICE-CLERK (Wheatley).—The pursuers carry on business as watchmakers, watch repairers and jewellers in Perth. In this action, which they raised in the Sheriff Court at Perth, they seek damages from the defenders jointly and severally or severally in respect of loss which they sustained as a result of theft from their premises of jewellery, watches and other items which they allege was occasioned as a result of failure by the defenders to carry out certain duties which they respectively owed to them. After hearing evidence the sheriff issued an interlocutor on 26th October 1983 in which he repelled the pleas-in-law for the pursuers, sustained appropriate pleas-in-law for both defenders and assoilzied each of the defenders from the crave of the initial writ. The pursuers have appealed to this court against that interlocutor. Early on in the hearing of the appeal pursuers' counsel intimated that the pursuers were not insisting on the appeal quoad the first defenders who are therefore entitled to have the appeal so far as directed against them dismissed, and the interlocutor of the sheriff appealed against affirmed so far as it relates to them. That leaves the second-named defenders the only defenders in the case, and for the sake of simplicity they will hereinafter simply be referred to as "the defenders". Moreover, it was agreed between them and the pursuers that if damages fell to be awarded to the pursuers the figure should be £6,499.

The sheriff made findings-in-fact and findings-in-fact-and-in-law. In his findings-in-fact-and-in-law he found (a) that the pursuers did not suffer loss through the fault and negligence of the defenders; and (b) the pursuers failed to establish any duty of care to be incumbent on the defenders. As the first of these is contingent on the second, the primary point in the issue is whether in the circumstances which prevailed the defenders owed a duty of care to the pursuers, and if so, in what form. It is only if these questions are answered favourably to the pursuers that certain further questions have to be considered. These are (a) whether the pursuers have established that the defenders were in breach of that duty, and, if so, (b) whether they have proved a causal connection between the defenders' breach and the loss averred.

The pursuers' premises, which are leased from the original first defenders, are on ground level, and are situated at the corner of High Street and New Row. The sheriffs findings-in-fact set out the description of the area, the condition of the property and the manner in which the theft was effected. He did so in the following findings:

"2. The first defenders also own the property immediately above the pursuers' premises. This property consists of flatted dwellings, and looks onto High Street and New Row. High Street and New Row form two sides of a rectangle of buildings, in the centre of which are yards and back areas associated with said buildings. 3. Behind the pursuers' said premises there is a walled yard with a doorway. Said yard leads to an enclosed stairway which provides the only access to said flats above the pursuers' premises. Access to the doorway of said yard is gained by means of a close running from New Row. 4. There are three conventional methods of access to the general area behind the pursuers' premises, which includes said walled yard. Firstly, there is said close running from New Row at a point a short distance from the inter-section with High Street. Secondly there is a close which runs down the side of the pursuers' premises in High Street on the other side of the premises from said intersection. Thirdly, there is a close which serves a small contained yard belonging to a plumbers' business, which runs from High Street at a point further down from New Row than the second close. 5. For about two months prior to 7th December 1981, the second-named defenders carried out restoration and refurbishing work in said flats on the instructions of the first-named defenders. For some time prior to the start of said work, the first-named defenders had removed their tenants from said flats and rehoused them elsewhere. However, until said work commenced, said flats were secure. 6. As a matter of arrangement between the two defenders, the responsibility for the security of said flats while said refurbishing work was being done lay with the second defenders. This responsibility was incumbent upon them not only in accordance with normal custom and usage of trade in such circumstances, but also as a result of express oral agreement between the first and second defenders. 7. While said refurbishing work was being done on said flats, the second defenders often neglected the security of said premises. For a period the windows of said flats overlooking High Street were left open and unglazed to accommodate scaffolding. Said scaffolding was removed on 7th December 1981, but said windows were left as before. The door into said walled yard at the rear of said premises was often left unlocked or otherwise unsecured. At the top of said staircase, the entrance doors into said flats were on occasions left open. Further, the windows of said flats looking onto said back area were on occasions left open and unglazed. 8. Throughout this period, however, the three conventional methods of access to said general back area, namely the three closes running from New Row and High Street were at all necessary times effectively secured. No consideration was given by the defenders, however, to any alternative method of access into said back general back area. 9. During the progress of said works, and prior to 7th December 1981, the pursuers made a number of complaints to representatives of both defenders about the neglect of security in said flats. In particular, on one occasion at least, specific reference was made by one of the pursuers to the defenders that because of the lack of security, an intruder might easily gain entry to said flats and then gain entry to the pursuers' premises through the ceiling. On the night of 7th/8th December 1981, a thief or thieves entered the pursuers' premises by gaining entry to the flats above, and breaking through the ceiling. A large quantity of jewellery, watches and other items were stolen.…11. At the time of said burglary, the three close entries from New Row and High Street were secured. The windows of said flats looking onto High Street were open and unglazed, although the scaffolding had been removed on the foregoing afternoon. The door into said walled yard behind the pursuers' premises was unsecured. The windows in said flats looking onto said back area were open and unglazed. One of the entrance doors into said flats was open. 12. The thief or thieves gained access to said general back area by way of a lane further down New Row than High Street, said close running from New Row. Said lane was about 150 to 200 yards down New Row from the High Street. The thief or thieves walked down said lane, and at the end climbed over a tin-roofed building. Said building was about 12 to 15 feet high, and about 7 feet high at the eaves. They then dropped from the other side of said roof into said general back area. Once there, they walked across said back area and entry was then gained to said flats. 13. Said entry to the flats was relatively simply ascertained and negotiated by an experienced and practised housebreaker. The possibility that such an entry would in fact be achieved by intruders was or should have been reasonably foreseeable by the defenders had they undertaken any proper and diligent enquiry. 14. At the time of the break-in, the pursuers' premises were protected by an electric burglar alarm system. Said system was connected to the local police station. Said system consisted of alarms fitted to the doors and windows. There were also pressure pads fitted to the floors. There was no alarm system fitted to the roof. Such roof protection is often fitted in premises such as the pursuers', and is relatively inexpensive. However, in the circumstances, the pursuers' alarm system was adequate."

In finding 12 the sheriff gives some indication of how the thief gained entry to the flats from which entry to the pursuers' premises was effected. In his note the sheriff elaborated on this, and parties seemed to accept that his fuller explanation properly represented the evidence on the point, which was given by the thief himself, a man named Sneddon. What the sheriff has reported in his note is this:

"There had been scaffolding in front of the pursuers' premises leading up to flats, but this had been removed in the course of the afternoon (a Sunday) prior to the break-in. It was specifically the open windows in the flats over-looking the High Street, and the scaffolding, which alerted Sneddon's attention to the possibility that the pursuers' premises could be broken into. Although the scaffolding had been dismantled, Sneddon deponed to walking down New Row for a distance of about 150 to 200 yards and then walking along a lane leading from New Row and running parallel to High Street. At the end of this lane he climbed a tin-roofed building attached to a church which was 12 to 15 feet high overall, and 7 feet high at the eaves. He then simply jumped down into the general back area and found his way to the walled yard. He found the door unsecured, but for reasons that were not entirely clear he scaled the wall rather than walk through the door. He then, again for reasons that were obscure, climbed up a drainpipe to a balcony which the doors of the flats gave onto, rather than negotiating the staircase which gave access to the same doors. He walked through one of the flat doors, which was open, and then made a hole in the floor which gave him access to the pursuers' premises below. Having removed his loot, he then emerged from the flats, descended the staircase and walked through the doorway in the walled yard and made good his escape."

The pursuers' averments of fault are set out in condescendence 5 of the closed record, to which reference is made. These averments give rise to the question of what duty of care, if any, is owed by a person in occupation, possession and control of property to owners or lessees of adjacent property. The defenders submit that in the circumstances here present the answer is none, and the sheriff accepted and gave effect to that view. He has stated quite clearly that if any legal duty was imposed on the occupier of property to take reasonable care in his use of his property not to cause foreseeable damage to adjoining property then the defenders had breached that duty in a particularly negligent fashion. The sheriff has stated that not without difficulty he had come to the view that no such duty existed. He seemed to be particularly impressed with the decision and opinions of the Court of Appeal in P. Perl (Exporters) Ltd. v. Camden London Borough Council [1984] QB 342, the report of which, we were informed, had been presented to him "hot off the press". In that case the element of special relationship loomed largely, and in my view what was said in that case falls to be compared with what was said in the cases which had preceded it.

When the questions of reasonable foreseeability in relation to negligence and the range of people on whom the duty to take care rests are being canvassed, the modern starting off points are the speeches of the judges in Donoghue v. Stevenson 1932 SC (HL) 31. But as Lord Reid pointed out in Dorset Yacht Co. Ltd. v. Home Office [1970] AC 1004 these questions had been discussed and decided upon in the earlier Scottish case of Scott's Trustees v. Moss (1889) 17 R. 32. However, it is perhaps sufficient to start with the classic words of Lord Atkin, now so hallowed and oft-repeated that further repetition seems unnecessary. In reviewing how the law has developed since then I may be pardoned for focusing on the basic tests adumbrated by Lord Atkin at p. 44. "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour"; and "the answer to who, then, in law is my neighbour? seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question". The test of foreseeability is accordingly two-fold in regard to (a) whether the act or omission is likely to injure a neighbour and (b) which persons are likely to be injuriously affected by the act or omission. At p. 70 in Donoghue v. Stevenson, supra, Lord Macmillan set out principles in this regard which he developed further in subsequent cases. He said:

"The grounds of action may be as various and manifold as human errancy; and the conception of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust and adopt itself to the changing circumstances of life. The categories of negligence are never closed."

Lord Macmillan was there underlining what has been the traditional Scottish attitude to the development of the law, namely that it should be founded on principles which can be applied to test whether new and changing circumstances do or do not fall within the law, and eschewing the temptation of seeking to fit cases into previous decisions and developing the law in that manner. In Bourhill v. Young 1942 SC (HL) 78 Lord Macmillan said at p. 88:

"There is no absolute standard of what is reasonable and probable. It must depend on circumstances and must always be a question of degree."

In the Dorset Yacht Co. Ltd. case, supra, Lord Reid said at p. 1026H:

"In later years there has been a steady trend towards regarding the law of negligence as depending on principle, so that, when a new point emerges, one should not ask whether it is covered by authority but whether recognised principles apply to it. Donoghue v. Stevenson may be regarded as a milestone, and the well-known passage in Lord Atkin's speech should I think be regarded as a statement of principle. It is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. But I think the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion."

Lord Reid was clearly carrying on the approach of Lord Macmillan in Donoghue v. Stevenson and Bourhill v. Young, as cited supra, and further endorsed by him in Muir v. Glasgow Corporation 1943 SC (HL) 3, at p. 10.

The foregoing authorities seem to establish clearly that, under reference to the principles which have been laid down, it is a question whether the facts and circumstances of each case establish that it was reasonably foreseeable that (a) unless reasonable care was exercised loss such as occurred would be sustained, and (b) it could be sustained by persons in the position of the pursuers. In this case these two matters are closely inter-woven and depend largely on the same circumstances. The phrase "reasonable foreseeability" tended to be used in the early days in general terms without any endeavour to define it more precisely. For example in Scott's Trustees v. Moss, supra, Lord President Inglis used the words "it could be very easily foreseen" and Lord Shand "If the results were not as should reasonably have been anticipated". In Dorset Yacht Co. Ltd., supra, Lord Reid, dealing with both aspects of foreseeability when it had been argued that there had been novus actus interveniens, 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 interveniensbreaking 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."

The fact, therefore, that the pursuers' loss in this case was occasioned by the criminal act of a third party does riot exclude the defenders' liability if the pursuers have proved that in the circumstances which prevailed the defenders ought to have foreseen that what happened to the pursuers was likely to happen if they did not carry out the duties which were incumbent upon them. This does not require to be a hypothetical exercise, because the findings-in-fact are available to the court. This becomes what Lord Justice-Clerk Thomson described in Harvey v. Singer Manufacturing Co. Ltd. 1960 SC 155 as "a sort of jury question for judges", but the test for judges is an objective one. The only alterations to the findings-in-fact which in my view fall to be made are: (1) after the first sentence in finding 5 add the words "during the said period the second-named defenders were in effective occupation of the said flats"; (2) in finding 8 substitute "anyone" for "the defenders" and (3) in finding 12 after the words "They then dropped from the other side of said roof and went over a 5-foot wall".

It has to be borne in mind that in this form of appeal the appeal court has to proceed on the findings-in-fact and on them alone. On the findings-in-fact I come to consider (1) whether it has been established that in the circumstances it was reasonably foreseeable i.e.likely or even very likely that a thief would enter the premises which were in the occupation and control of the defenders and from there obtain access to the pursuers' premises; and (2) whether in the circumstances the defenders owed a duty to the pursuers to take reasonable steps to prevent such an occurrence. As the two matters are closely interlinked I will deal with them together. The premises were clearly unoccupied. Scaffolding had been erected on the outside facade of the building, and windows overlooking High Street were left open and unglazed to accommodate scaffolding. Although the scaffolding had been removed before the burglary took place the windows overlooking High Street were left open and unglazed. The pursuers' premises—a jeweller's and watchmaker's business—was situated in the heart of this property. In my opinion it should have been patently obvious to the defenders that a jeweller's shop was a prime target for burglars, that access to it would be readily accessible from inside the property, and that in the absence of proper precautions access to the inside of the property which was unoccupied would be a simple matter. This is not mere speculation. It was all vouched for in the evidence of the burglar, Sneddon. On that basis alone, I am of the opinion that any reasonable person in occupancy and control of the property would have readily foreseen the likelihood of what in fact occurred. That, however, is compounded by the fact (finding 9) that the pursuers made a number of complaints to representatives of the defenders about neglect of security in the flats. In particular it is found as a fact that on one occasion at least specific reference was made by one of the pursuers to the defenders that, because of lack of security, an intruder might easily gain entry to the flats and then gain entry to the pursuers' premises through the ceiling. In my opinion these facts answer for this case the issue posed by Lord Reid in the Dorset Yacht Co. Ltd.case. When dealing with the question of novus actus interveniens "What, then, is the dividing line? Is it foreseeability or is it such a degree of probability as warrants the conclusion that the intervening human conduct was the natural and probable result of what proceeded it?" In my opinion it is clearly the latter here. If a high degree of foreseeability is the test, and it seems to be the one adopted by the sheriff, the facts here seem to me to satisfy that test on both aspects of foreseeability, and I proceed on that basis. As I read the sheriffs findings and note, he appeared to be heading for a decision in favour of the pursuers until he was presented with the case of Perl (Exporters) Ltd., supra,whereupon he considered that there was no clear authority for a duty such as the pursuers argue for. This must surely proceed on the basis that no case of "special relationship" had been established. The doctrine of "special relationship" stemmed from a dictum of Dixon J. in Smith v. Leurs (1945) 70 C.L.R. 256 at 262 where he said:

"The general rule is that one man is under no duty of controlling another man to prevent him doing damage to a third. There are, however, special relations which are the source of a duty of this nature".

It is true that several of their Lordships in the Dorset Yacht Co. Ltd. case in the House of Lords followed this, but the question of a special relationship arose in that case, which was also complicated by questions of public policy. What their Lordships said in their speeches has to be read against that background. If that dictum is to be regarded as an authority for the proposition that the existence of a special relationship is a sine qua non of any such duty, then in my opinion that proposition is too absolute. Waller L.J. in Perl (Exporters) Ltd., in contradistinction to his colleagues, did not go as far as that (p. 349). In my opinion, the absence of a special relationship is only a factor, and may be a potent actor in deciding whether or not the duty exists, but it is not a sine qua non.That view seems to me to conflict with the stream of authority developed through Lord Atkin, Lord Macmillan and Lord Reid, cited above, and to leave for consideration all the relevant circumstances in order to determine whether on a fairly high degree of probability the thing which happened was likely to happen. In doing so I do not find it necessary to explain away, as Oliver L.J. sought to do in Perl (Exporters) Ltd., what Lord Reid said in Dorset Yacht Co. Ltd. Rather I find support in it.

I am accordingly of the opinion that the sheriff was wrong in holding that in all the circumstances no duty, such as that propounded by the pursuer, existed. He has gone on to say that if such a duty existed, he had no doubt that the defenders had breached that duty in a particularly negligent and blatant fashion. He illustrates that in the following ways. (1) The defenders took no steps to ascertain whether there might be any route other than the three closes which should give access to the general back area. He says that the possibility of such an access existing somewhere must have been eminently foreseeable. (2) Despite specific complaints by the pursuers the defenders left the flats in such a manifestly insecure condition that it constituted an open invitation to intruders to break into what was obviously a highly attractive target for thieves. It is accordingly necessary to have regard to the pursuers' averments of fault, to see which of these have ben established, and to consider whether any established failure in duty was causally connected with the loss sustained. The pursuers' averments of fault are contained in condescendence 5 and are in these terms:

"The second defenders were under a duty to secure the property immediately above and adjacent to the pursuers' said shop premises whilst said property was unoccupied. The second defenders were under a duty to take reasonable precautions against a thief or thieves entering said unoccupied property and from there entering the shop premises leased by pursuers from first defenders. In particular the second defenders were under a duty to take heed of warnings and intimation given by pursuers to the effect that the premises being refurbished were frequently being left in an insecure state, unlocked and could be easily entered by persons having no right to do so. The second defenders were under a particular duty of care to take such reasonable precautions as averred above in view of the fact that pursuers occupied said shop floor premises as jewellers, watchmakers and watch repairers. It was well known to the second defenders that pursuers so occupied said premises. Pursuers frequently gave warnings and intimations to the foreman of the second defenders that inter alia the flat immediately above their shop floor premises was left unattended and unoccupied, with no adequate security arrangements being taken, and that easy access could thus be obtained by a thief to pursuers' said shop premises via the flat immediately above. In particular, pursuers warned the second defenders that the windows of said first floor flat to the front and rear were left open and for a period prior to 7th December 1981 unglazed. The second defenders paid no need to pursuers' said warnings and intimations or at least took inadequate steps to fulfil the duties incumbent upon them as condescended on above and as demanded of them by pursuers. Had the second defenders fulfilled said duties the pursuers would not have suffered the loss of jewellery, watches and other items to the value of £13,319.38 as condescended on above. In addition the pursuers have suffered loss of business valued at £800 as condescended on hereinbefore. In each and all these duties the second defenders culpably failed and by their failure caused loss to the pursuers as condescended on above."

The grounds of fault therein are based on the following facts: (1) the condition of the manifestly unoccupied premises constituted an open invitation to enter them, something which could be easily effected in the various ways condescended upon; (2) the situation of the pursuers' jewellery premises in the complex made entry to the premises easily accessible from above; (3) the risk of a thief or thieves entering the unoccupied property and getting access to the pursuers' shop, which was a prime target for, and an allurement to a burglar; (4) this was particularly so in view of the warnings which had been given by the pursuers to the defenders that such danger were live possibilities, especially the danger of thieves getting into the flat above the shop premises and getting access into the shop from that flat; (5) the failure of the defenders to take reasonable precautions to prevent thieves getting into the property and thereby getting access to the shop from the flat above, the door of which was open. These matters were all dealt with in the findings-in-fact, and it was because the sheriff held them to have been established that he expressed the view that if the duties existed the defenders had breached them in a particularly negligent and blatant fashion. The pursuers' case of fault in condescendence 5 is basically set out in the first two sentences thereof, under specific reference to the allurement of the pursuers' premises. That basic case was that in the circumstances it was the defenders' duty to secure the property immediately above and adjacent to the pursuers' premises while the property was unoccupied, and to take reasonable precautions against a thief or thieves entering the unoccupied property and from there entering the pursuers' shop premises. Their complaint is that despite the condition of the premises and the warnings which they gave to the defenders about the foreseen dangers, the premises were left unattended and unoccupied with no adjacent security arrangements being taken, so that easy access could thus be obtained by a thief to the pursuers' premises. All this is established by the findings-in-fact which consist with the pursuers' averments of fault. In my view that constituted a negligence which was causally connected with the burglary and its consequences. Once these matters have been established, it seems to me that such matters as the actual route taken by the burglars to obtain entry into the complex and from there into the pursuers' premises, both of which were easily obtainable in view of the condition of the premises, did not have to be reasonably foreseeable—Hughes v. Lord Advocate 1963 SC (HL) 31.

I am accordingly of the opinion that the pursuers have proved their case. I would accordingly recall the interlocutor of the sheriff dated 26th October 1983, sustain the appeal, make the additions to the finding-in-fact hereinbefore referred to; sustain the first plea-in-law for the pursuers so far as it related to the defenders; and grant decree to the pursuers against the defenders for the sum of £6,499.

LORD ROBERTSON .—The pursuers and appellants in this appeal, from the sheriffdom of Tayside, Central and Fife at Perth, carry on business as watchmakers, watch repairers and jewellers in a firm known as "Time Centre" of Perth, 260 Old High Street, Perth. The first defenders and respondents are the heritable proprietors of the tenement building consisting of shop premises and flats above comprising 2–12 New Row and 256–260 High Street, Perth. The pursuers' premises are part of this tenement, which are leased by the pursuers from the first defenders.

During the latter part of 1981 the first defenders employed the second defenders and respondents, who are a firm of building contractors, to carry out certain reconstruction and refurbishment of flatted property on the first floor of the tenement immediately above the pursuers' shop. During the execution of the works the flats were empty, the first defenders having removed the tenants and rehoused them elsewhere: during this period the second defenders were in effective occupation of the flats.

The pursuers' premises are on ground level at the corner of High Street and New Row. The tenement looks on to both streets and is part of a rectangle of buildings, in the centre of which are yards and back areas associated with the buildings. Behind the pursuers' premises there is a walled yard with a doorway, the yard leads to an enclosed stairway which provides the only access to the flats above the pursuers' premises. Access to the doorway of the yard is gained by means of a close running from New Row.

There are three closes giving conventional methods of access to the ground area behind the pursuers' premises, including the walled yard—one from New Row and two from High Street. Each of these closes was effectively secured by a locked gate. There is also a lane running from New Row at a distance about 150/200 yards from High Street which runs along the back of the general area behind the pursuers' premises. It was possible from that lane to climb up on the roof of a building 7 feet high and drop over into the general back area.

On 7th December 1981 a thief or thieves broke into the pursuers' premises and stole a quantity of jewellery etc. It was agreed that the resulting net loss to the pursuers for the purposes of the action was £6,499. At the proof evidence was given on behalf of the pursuers by Ian Sneddon who had been sentenced to two years' imprisonment for the robbery. He claimed to have been alone at the time, but the police believed that another man also was involved. Sneddon got into the premises by going up the said lane, climbing over the wall by means of the said roof, and gaining access to the general area. There he entered the walled yard through the unlocked doorway. The door into the stair was also open, but he climbed a pipe and entered the flat above the pursuers' shop by means of an open window. He then broke through the floor of the flat, the ceiling of the pursuers' premises, and after acquiring his loot, returned the way he had come.

The action was raised by the pursuers against both defenders, but at the hearing of the appeal it was accepted by the pursuers that their case was against the second defenders only. The case made by the pursuers was that the loss and damage suffered by them was caused by the fault and negligence of the defenders. The second defenders were under a duty to take reasonable precautions against a thief entering the said unoccupied property and from there gaining easy access to the pursuers' shop. The defenders were under a duty to pay heed to warnings and intimation given by the pursuers that the property being refurbished was frequently left in an insecure state, unlocked and easily entered. There was a particular duty on the second defenders to take reasonable care because the pursuers' shop—as was known to the defenders—was a jewellers. Frequent warnings were given by the pursuers to the second defenders that the flat immediately above was left unattended and unoccupied with no adequate security arrangements, and thus a thief could easily get access to the pursuers' shop via this flat. In particular the pursuers warned the second defenders that the windows of this flat were left open and unglazed. The second defenders took no steps to fulfil these duties and so caused the loss and damage to the premises.

After proof the sheriff in a careful judgment made findings-in-fact which indicated that: (1) the security of the premises was often neglected by the said defenders while the refurbishing work was going on; windows of the flats were left open and unglazed, scaffolding was erected on the High Street side, but removed on 7th December 1981, the windows remained open. At the back the door into the walled yard was often left unlocked or otherwise unsecured. The entrance doors to the flats at the top of the stairs were on occasions left open. The windows at the back were on occasions left open and unglazed; (2) the three closes at the back were at all necessary times effectively secured; but the defenders gave no consideration to any alternative method of access at the back; (3) during the progress of the work prior to 7th December 1981, the pursuers made a number of complaints to the defenders about the neglect of security in the flats; (4) entry to the flats was relatively simply ascertained and negotiated by an experienced housebreaker. The possibility that such an entry would in fact be achieved was or should have been reasonably foreseeable by the defenders had they undertaken any proper and diligent inquiry.

In his note the sheriff indicates clearly the view he took on the merits of the case, but he felt constrained to decide in favour of the second defenders because he was persuaded that the second defenders owed no such duty to the pursuers as is alleged in the circumstances of the case. "Had such a duty existed, I would have had no doubt that the second defenders had breached that duty in a particularly negligent and blatant fashion. They took no steps to ascertain whether there might be any route other than the three closes which could give access to the general back area. The possibility of such an access existing somewhere must have been eminently foreseeable. Moreover, despite specific complaints by the pursuers, the second defenders left the flats in such a manifestly insecure condition that (as was argued) it constituted an open invitation to intruders to break in to what was obviously a highly attractive target for thieves."

The primary argument on behalf of the pursuers at the appeal was accordingly that the sheriff was wrong in holding, as he did, that there is no duty of care owed by occupiers of premises to secure those premises against violation by third parties of adjoining premises. In reaching this conclusion he seems to have been influenced by the decision of the English Court of Appeal in P. Perl (Exporters) Ltd. v. London Borough of Camden [1984] QB 342, where the facts bore a superficial resemblance to those in the present case. But the question whether such a duty is owed does not depend in Scots law on precedents, but on principle. The principle that a defender may be liable to a pursuer for the actings of a third party, if these actings were the natural and probable consequence of the action or failure of the defender, which the defender ought to have foreseen, may be traced back to Scott's Trustees v. Moss (1889) 17 R. 32, per Lord Shand at p. 37. See also Marshall v. Caledonian Railway (1899) 1 F. 1060. In Donoghue v. Stevenson 1932 SC (HL) 31, Lord Atkin at p. 44 said:

"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then, in law, is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."

(See also Muir v. Glasgow Corporation 1943 SC (HL) 3, per Lord Thankerton at p. 8 and Lord Macmillan at p. 10;Bourhill v. Young 1942 S.C. (H.L.) 79, perLord Macmillan at p. 88.)

In Dorset Yacht Co. v. Home Office [1970] AC 1004, Lord Reid at p. 1030, after discussing the principle, said:

"…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 interveniensbreaking 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".

The cases in English law which were referred to seem rather to have relied upon "special relations" as the source of such a duty (Dorset Yacht Co., supra, per Lord Morris of Borth-y-Gest at pp. 1038/1039, Lord Pearson at p. 1055). In P. Perl (Exporters) Ltd. v. Camden London Borough Council, supra, again the argument seems to have concentrated upon the "special relationship" which might impose a duty on the defendant to exercise control over the third party causing the damage; the general rule at common law was said to be that a person was not liable for the acts of an independent third party, but even if there was a "special relationship" imposing such a duty it could not apply unless there was a high degree of foreseeability that damage would occur as a result of the act or omission of the defendant. In that case, thieves had broken through the wall from the defendant's basement into the plaintiffs basement and stolen goods. But it was held in the Court of Appeal that, although it was a reasonable possibility that thieves might gain access through the defendant's property to the plaintiffs property, it was not reasonably foreseeable to the defendant that the natural and probable consequence of their omission to secure their premises should be the cause of the persons over whom they had no control stealing the plaintiffs goods.

Applying the tests of principle adumbrated by Lord Atkin and Lord Reid in the above quotations I do not doubt that the second defenders owed a duty to the pursuers to take reasonable care to avoid any omission or act which might have as its reasonable and probable consequence injury to them. But on the facts of the case the action by the third party—the thief—must have been something that was very likely to happen—and not a mere foreseeable possibility—to be sufficient to form the link creating the chain of causation and not to be regarded as a novus actus interveniens.

The sheriff in his finding-in-fact 13 found that entry to the flats was relatively simply ascertained and negotiated by an experienced and practiced housebreaker, and continued—"The possibility that such an entry would in fact be achieved by intruders was or should have been reasonably foreseeable by the defenders had they undertaken any proper and ‘diligent enquiry’".

The use of the word "possibility" at first sight appears to fall short of the test of "probability" and "very likely", adumbrated by Lord Reid. But the sheriff did not examine closely the exact meaning of these words and I do not think he used the word "possibility" in its narrow sense. He says in his note at page 43B that "the possibility of such an access existing somewhere must have been eminently foreseeable".

The sheriff does not examine in detail the various factors that were critical in a decision on this matter. The primary point was that the pursuers' premises on the corner of the ground floor of the tenement were a jeweller's shop, with valuable jewellery in the window. The risk of entry through the ceiling from an empty flat above, had they thought about it, would have been seen to be obvious and a very likely approach by thieves. During the period when the refurbishing of the flats above was being carried out, the flats were empty, scaffolding was erected at the front of the building up to the first floor flats, and the windows of the first floor flats were left open. Further, the door at the back giving entry to the stairs was not kept closed and there was nothing to stop anyone who had gained entry to the general back area; the door from the general back area into the walled area was not kept shut. In the circumstances it is plain that the empty flats above the pursuers' premises were an allurement to thieves and an encouragement to get into the flat above the shop and gain entry thereby. The thief Sneddon himself said that what put him on to the shop in the first place was the scaffolding in front, with the open windows in the flat above, which told him that the flat was vacant. "If I hadn't known the flat above was vacant I probably wouldn't even have thought about doing it…it was open windows that put me on to the premises being vacant. If the window hadn't been open and the scaffolding wasn't there I wouldn't have tried it."

Accordingly it seems to me that the second defenders owed to the pursuers the duty to take reasonable care to avoid any omission or act which might have as its reasonable and probable consequences injury to them; and that in all the circumstances the intrusion of a thief or thieves was something that was very likely to happen—and not a mere foreseeable possibility. I therefore am of opinion that the sheriff erred in holding that there did not exist any duty in law such as the pursuers argued for.

The sheriff in his note went on to say that, had there been such a duty, he would have had no doubt that the second defenders had breached that duty in a particularly negligent and blatant fashion. They took no steps to ascertain whether there might be any route other than the three closes which would give access to the general back area; the possibility of such an access must have been eminently foreseeable. Moreover despite specific complaints by the pursuers they left the flats in such a manifestly insecure condition that it constituted an open invitation to intruders to break in to what was obviously a highly attractive target for thieves.

On behalf of the second defenders it was argued that the pursuers' pleadings were fatally defective because they did not specifically aver (a) what steps the defenders should have taken to fulfil their duty of care; and (b) how the taking of any such steps would have prevented the actual invasion of the premises by Sneddon in the way spoken to. In particular, it was argued, by securing the three closes, which were the normal means of access to the general back area, the defenders took all reasonable steps to fulfil their duty to take reasonable care in the circumstances. I do not agree with this argument. It is not necessary for liability that the precise method of entry should reasonably have been in contemplation (Hughes v. Lord Advocate 1963 SC (HL) 31). But the evidence clearly indicates that entry to the general back area was easily obtained and that the route followed by the thief was simply ascertained and negotiated by an experienced and practiced housebreaker (finding 13). I agree with the sheriff that the defenders did not exercise reasonable care by simply making the three closes secure and failing to make any further proper and diligent enquiry or examination.

There remains what is perhaps the most difficult point for the pursuers—whether the breach of duty averred and proved by the pursurs caused the theft. The pursuers' pleadings are noticably sparse on this matter. But at the proof evidence was led at large without objection that the defenders should have boarded up and made secure the open windows in the first floor flat and kept the doors locked. It seems to have been a matter of agreement that these precautions were not in fact taken. But did their absence cause the particular theft which occurred? Sneddon himself agreed that he was able to gain access to the walled area from the general back area through the unsecured door: but he did not in fact make use of the unsecured door into the building, preferring to climb up a drainpipe. Thereafter he entered the building by means of the open window space and was able to reach the place above the jeweller's shop through unsecured doors. Further, the floor boards at the place of break in had been already lifted, leaving him the simplest of tasks to break through the ceiling of the downstairs shop.

The sheriff hardly applied his mind to this point because he had reached the conclusion that no duty of care was owed by the defenders to the pursuers. But on the whole it seems reasonable to reach the conclusion that the pursuers are entitled to succeed on this point. The thief Sneddon in his evidence said more than once that it was the open windows which told him that the flat was vacant and that if the windows had not been open (coupled with the scaffolding) he would not have tried it. The question whether, if he had found the windows at the back closed and barred, he would have gone on with the enterprise, therefore appears to be hypothetical.

I would hold that, had the defenders taken the reasonable step of blocking up and securing the windows at night and at weekends when no work was going on, the break-in would not have occurred. I would accordingly allow the appeal, repel the sheriffs findings-in-law, uphold the pursuers' first plea-in-law against the second defenders, and grant decree for the agreed sum of £6,499 on behalf of the pursuers against the second defenders. I also agree with your Lordship in the Chair that the additional findings-in-fact should be made as set out by your Lordship.

LORD DUNPARK .—The pursuers occupied a jeweller's shop at the corner of High Street and New Row, Perth (hereinafter referred to as "the shop") with council flats on the two floors above looking onto High Street and New Row. This building was the property of the first defenders. The pursuers leased their shop from the first defenders. After the speech of junior counsel for the pursuers, senior counsel for the pursuers intimated that the pursuers no longer asked for decree against the first defenders, so we are now only concerned with the case against the second defenders (hereinafter referred to as "the defenders").

Your Lordship in the Chair has set out the findings-in-fact in full, so I need not repeat them; but the sheriffs description of the buildings left me in some doubt as to the layout of the area at the back of the shop. I referred to a plan produced, but it did not assist me, so I must endeavour to interpret the sheriffs findings anent this layout. As I understand them, there is a rectangle of buildings of which the buildings in High Street and New Row form two sides. Within the rectangle of buildings there is an open area enclosed by the rectangle. Within that open area there are at least two walled yards, one of which is behind the pursuers' shop. From the pursuers' yard access to the flats above the shop is obtained by means of a door and stairway. In findings 3 and 4 the sheriff refers to three conventional methods of access to the back area. The first is through a doorway in a close leading from New Row into the pursuers' yard; the second is through a doorway in a close leading from the High Street; the third is through a doorway in a close further along the High Street, which gives entry to a walled yard belonging to a plumber. However, as I understand the position, there was no doorway in that wall, which would have to be scaled by any person who wanted to enter the open area behind the shop.

On 7th December 1981 thieves gained access to these flats from the rear and entered the shop through' the floor of one of the flats on the first floor above the shop and made off with a large quantity of jewellery. For about four months before this incident the defenders, on the instructions of the first defenders, had been executing structural and other work to the flats on the first and second floors above the shop. For some time prior to the theft the defenders had scaffolding up the front of the shop building in the High Street and the windows of the flats to the front and rear were open and unglazed. As I understand the position the windows were just open rectangles. What happened, according to the thief, Sneddon, who gave evidence for the pursuers, is that he was attracted by the scaffolding and the open windows on the High Street and New Row, which told him that the flat above the shop was vacant. The scaffolding at the front of the shop was removed during the day on 7th December. There was no scaffolding at the back. Sneddon apparently made no attempt to enter the back area through any of the closes. He went along a lane which ran off from New Row, parallel with the High Street, the lane being the boundary on the opposite side of the rectangle from the High Street. Finding 12 narrates how the thieves obtained entry to the back area, whence, presumably, he climbed the wall into the pursuers' yard. Sneddon said that he had climbed a drainpipe at the rear of the shop and entered the flat above the shop through the open window space. He then obtained entry to the shop through the floor of the flat above.

Now the pursuers' averments of fault against the defenders are to be found in article 5 of the condescendence. In summary the pursuers aver that the defenders had the duty to take reasonable care against a thief or thieves entering the flats above the shop, particularly as they knew that it was a jeweller's shop. There are averments that the defenders had a duty to heed wearnings given by the pursuers about the insecurity of the flats and the ease with which a thief could enter the shop from the flats above; but there are no averments whatsoever relating to what action the defenders should have taken to fulfil their duty of care. In the absence of such averments I regard the pursuers' pleadings as irrelevant for want of specification. However, evidence was led without objection that the defenders should have kept the close doors locked and boarded up the window spaces.

Three questions arise, videlicet: (1) in the circumstances of this case were the defenders under a duty to take reasonable care to see that their operations on the flats did not expose the shop unnecessarily to the risk of theft? (2) if they were, is breach of that duty proved? and (3) if so, did their breach cause the theft?

(1) Existence of duty of care

For my part I have no doubt that the defenders owed this duty to the pursuers. The principle applicable to negligence is well established. The duty to take care is the duty to avoid an act or omission which may have as its reasonable and probable consequence injury to others, and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not fulfilled (Donoghue v. Stevenson 1932 SC (HL) 31, per Lord Atkin at p. 44 and Muir v. Glasgow Corporation 1943 SC (HL) 3, per Lord Thankerton at p. 8 and Lord Macmillan at p. 10). While the principle is simple to state, it is not so easy to apply. The question of whether the duty is owed depends upon the facts of the particular case. Here we have a jeweller's shop on the ground floor of the High Street in Perth with valuable jewellery displayed in the window. One of the police witnesses, Detective Sergeant Clark, regarded derelict flats above shops as "a problem" in the context of the security of the shops. Where a shop is a jeweller's with a frontal display, I consider that the risk of unlawful entry from the floor of a vacant flat above is a real one. If, for example, entry to unoccupied flats above a jeweller's shop can be obtained by an open stairway from the street, in my opinion it is reasonably foreseeable by the person or persons responsible for the security of the floor above the shop that the reasonable and probable consequence of his or their failure to take reasonable measures to secure the entry to their premises is that a thief or thieves are more than likely to reconnoitre the means of entry to the first floor as a concealed route to the shop below. In that hypothetical situation I consider that the duty to take reasonable care requires that the doorway from the stairs into the flat above is kept locked. I do not suggest that the entry must be made impregnable, for that would exceed the duty of reasonable care; but in such a situation I am of opinion that the duty of care exists.

In this case, therefore, I am of opinion that the defenders ought reasonably to have foreseen that, if they erected scaffolding which afforded access to open windows on the floor above the jeweller's shop, that would be very likely to attract the attention of thieves (which it did) and to encourage them to reconnoitre the back of the shop to see if they could easily obtain entry to the first floor from there, which would not be visible from public streets. That being reasonably foreseeable, I am of opinion that the defenders owed to the pursuers the duty to take reasonable care to maintain the security of the means of entry to the back area. The fact that the thieves in this case did not use the scaffolding because it had been removed is not, in my opinion, relevant to the existence of the duty of care.

The learned sheriff was unable to find any clear authority for the view that the defenders owed to the pursuers a duty to take reasonable care in the execution of their operations in the flats above to impede the access of thieves to the dloor above the jeweller's shop. In my opinion he erred in looking for case precedents. He ought to have applied the general principle of reasonable foreseeability, particularly as he states in his note:

"The possibility of such an access must have been eminently foreseeable."

To say that something is eminently foreseeable is, in my opinion, just another way of saying that it was very likely to happen. The sheriff was certainly looking for "a high degree of foreseeability", but the opinions of the Lord Justices in Perl (Exporters) Ltd. v. Camden London Borough Council [1984] QB 342 seem to have induced him to believe that the defenders owed no such duty of care to the pursuers because there was no special relationship between the defenders and the thieves.

I accept that the general rule referred to in Perl and in the Dorset Yacht Co. Ltd. v. Home Office [1970] AC 1004 is that "one man is under no duty of controlling another man to prevent him from doing damage to a firm", but that rule must be of doubtful relevance where the issue is whether thieves are likely to enter a shop occupied by a third party as a result of the insecure state of adjacent property. In that issue it is not a question of controlling the thieves but of taking reasonable care to control one's own property so as to make it difficult for thieves to use it as a means of access to the shop. The Dorset Yacht case was bedevilled by the issue of public policy. The fact that there was a special relationship between the borstal officers and those under their control who did the damage was obviously of prime importance in that case, because the policy question was whether the state should be held liable for damage done by borstal trainees who escaped from their institution through the carelessness of their guardians. Viscount Dilhorne decided that the state must escape liability because those responsible for the administration of the system owed no duty of care to third parties; but the speeches of the majority of their Lordships make it clear that they applied the test of damage to the yachts being a reasonable and probable consequence of the careless borstal officers going to bed and leaving the boys to their own devices.

As I have said already, the question in each of these negligence cases is whether the principle is applicable to the facts averred or proved, and that depends upon the degree of foreseeability of the event which happened. Where the damage is caused by a third party over whom a defender has no control, no doubt the event which caused the damage must be one which the defenders ought to have foreseen was very likely to happen. If the defenders in this case had taken no precautions whatsoever to secure the conventional entries to the open area at the back, I am of opinion that they would have in effect given thieves an open invitation to enter the vacant flats and thence obtain concealed entry to the shop below. It is for that reason that I am of opinion that the defenders owed to the pursuers the duty to reduce that risk by taking reasonable care to secure these entries to the back area.

Perl is plainly distinguishable from the facts of this case on four main grounds: (1) what was stolen was knitwear from a basement, not jewellery; (2) in so far as I can ascertain the knitwear was not visible from the street, whereas the jewellery was by day displayed in the windows on the main streets; (3) there was no question in Perl of scaffolding and unglazed windows attracting thieves to attempt to gain access to the floor above the shop; and (4) in Perl the thieves had to cut their way through a wall eighteen inches thick, whereas in this case some of the floorboards in the floor above the shop had been removed and entry could be obtained easily and quickly through that floor. For these reasons I do not find it necessary to comment on their Lordships' opinions in Perl. Suffice it to say that the degree of foreseeability of theft in Perl was not nearly so high as it was in this case.

If Perl is to be interpreted as laying down a general rule that in no circumstances can the occupier of property be held to owe to the occupier of adjacent property the duty to take reasonable care to secure their own premises against their use as an easy means of access to the adjacent property by thieves, I disagree. The existence of such a duty must depend upon the facts of the particular case, and I am not persuaded that the existence of a special relationship between the defender and the person who did the damage is essential to the emergence of the duty of care.

(2) Were the defenders in breach of this duty?

It is plain as a pikestaff that, if the sheriff had decided that the duty of care existed, he would have found the defenders to have been in breach of that duty; but the question remains whether in the circumstances of this case the defenders discharged that duty merely by securing the doors in the three closes giving entry to the back area (see finding 8). Senior counsel for the defenders accepted that in finding 8 the word "anyone" should be substituted for "the defenders" as being consistent with the evidence led. Since the pursuers were the persons particularly interested in securing their own property against theft and they did not contemplate any means of entry to the flats except through the three closes, it is not immediately obvious why the defenders should have done so. However, the sheriff has found (finding 13):

"Said entry"

(i.e.the means of entry used by the thieves) "to the flats was relatively simply ascertained and negotiated by an experienced and practised housebreaker. The possibility that such an entry would in fact be achieved by intruders was or should have been reasonably foreseeable by the defenders". "A possibility" which is reasonably foreseeable is, in my opinion "a probability" and that is borne out by the existence of the scaffolding and open windows at the front which, in my opinion, told the expert that the flats were vacant and even invited him to explore entry from the back. Such means of entry by an experienced housebreaker being reasonably foreseeable, what did the defenders do to deter him? The answer is "nothing". The door in the yard was unsecured; the back windows of the flats were open and unglazed, and one of the entrance doors into said flats was open (see finding 11). Accordingly, I am of opinion that the defenders were in breach of their duty of care.

(3) Did this breach cause the theft?

I find this a difficult question to answer in this case. Firstly, it is for the pursuer to aver and prove the affirmative. Secondly, the pursuers do not aver what precautions the defenders should have taken to secure entry to the flats from the rear. Thirdly, although evidence was led, without objection, that it was the normal procedure for contractors to board up open windows overnight, no evidence was led as to what effect this might have had in preventing this theft. The thief, Sneddon, was not even asked whether he would have attempted entry if the rear windows had been boarded up. Lastly, the sheriff, because he concluded that no duty of care existed, did not deal with this crucial point. In that situation my original conclusion was that the pursuers had failed to prove the affirmative. However, having now read your Lordships' opinions, I am not compelled to dissent therefrom. It seems not unreasonable to conclude that the defenders, having attracted jewellery thieves by the notice of vacancy created by the scaffolding and open windows at the front of the shop and having taken no precautions whatsoever to deter thieves from entering from the rear, should not escape liability on this point.

Accordingly, I agree that this appeal should be dealt with as proposed by your Lordship in the Chair.