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Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Ferns v. Scottish Homes [2006] ScotSC 81 (20 December 2006)
URL: http://www.bailii.org/scot/cases/ScotSC/2006/81.html
Cite as: [2006] ScotSC 81
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SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES
AND GALLOWAY
A1388/04
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JUDGMENT OF SHERIFF PRINCIPAL B A
LOCKHART |
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in the cause |
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PAULA
FERNS |
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Pursuer and Appellant Assisted Person |
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against |
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SCOTTISH
HOMES |
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Defenders and Respondents |
Act: Sutherland, Advocate, instructed by Messrs Moore & Partners
Alt: Webster, Advocate, instructed by Messrs Morton Fraser
AIRDRIE:
The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the Sheriff's interlocutor of 23 June 2006 complained of; finds the pursuer and appellant liable as an assisted person to the defenders and respondents in respect of the expenses of the appeal; allows an account thereof to be given in and remits same when lodged to the Auditor of Court to tax and to report; certifies the appeal as suitable for the employment of counsel.
NOTE:
Background to the appeal
1. This case arises out of uninsured losses which the pursuer and appellant claims she sustained on 6 November 1999 when the flat owned by the defenders and respondents and occupied by her in terms of a lease was damaged extensively by a fire started by vandals who had broken into her flat when there was no-one at home.
2.
The case originally called for debate on
3.
The pursuer and appellant avers that she was between
August 1997 and November 1999 a tenant of a flat owned by the defenders and
respondents at 202G Stonylee Road, North Carbrain, Cumbernauld. This was a maisonette style flat on the first
floor of the block which formed
4.
The pursuer and appellant, in condescendence 2,
avers that despite vacating the property the tenants did not remove every item
of furniture and fittings. When
individual flats were vacated they became the target of vandals and drug and
alcohol abusers who broke into the flats and caused damage to them. On
5. After explaining her reasons for the apparent delay in moving to her present address in respect of which she had entered into a tenancy agreement in September 1999, the pursuer and appellant avers that by 4 November 1999 her flat at 202G Stonylee Road was the only occupied flat in that block and that all the other properties in the block had had all their windows and doorways boarded up with plywood. Her pleadings continue:
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"Because
of the open nature of the construction of the block of flats it was patently
visible that the pursuer's flat was the only flat in the block which had not
been secured in any position. The
visibly obvious isolation of the pursuer's flat made it a potential
attraction for vandals." On
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6. The pursuer and appellant avers at condescendence 3:
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"The
defenders were under a duty towards the pursuer to take reasonable care to prevent
damage to her flat by vandals. In
particular the defenders knew or ought to have known that the blocks of flats
in the neighbourhood had attracted the persistent attention of vandalism and
were the object of repeated acts of vandalism. The defenders knew or ought to have known
that these acts of vandalism took place in individual flats within the blocks
of flats. The defenders knew or ought
to have known that previous acts of vandalism had included fire raising. The defenders and respondents knew or ought
to have known that fires had been set inside and well as outside flats, all
as hereinbefore condescended upon. The
risk of damage to property by acts of fire raising had been drawn to the
attention of the defenders no later than |
7. After hearing parties the Sheriff concluded:
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"The
law appears clear that only in particular circumstances will the courts
impose liability for the actings of a third party outwith the control of the
defenders. Where there is no vicarious
liability, no special relationship and the case is one purely of omission the
courts will not find that liability exists. Lord
Goff, in Maloco, emphasises that
there is no general duty to "prevent" third parties from causing damage even
when it is likely that they will do so.
He emphases the words "prevent" by using italics in his judgment. I consider that his opinion encapsulates
the flaw in the pursuer's case. Furthermore
I do not find in the pursuer's Minute of Amendment any adequate basis for her
contention that "the defenders had a duty towards the pursuer to take
reasonable care to prevent damage to her flat by vandals". I am also unable to find any adequate
specification in relation to the averment that "It would have been a
reasonable step for the defenders to have employed security guards to protect
the pursuer's block of flats from acts of vandalism before As Mr
Webster pointed out, there is nothing to say the number of security guards
needed nor the hours on which they should have been on duty. Furthermore, without details as to how the
vandals managed to gain entry to the pursuer's property, it is impossible to
suggest that the defenders alleged failure to provide security guards would
have prevented the vandalism and fire occurring. In all
the circumstances and considering fully the terms of the judgment in Maloco and the passages in Clark & Lindsell I have concluded that this is the unusual case in
which the court requires to dismiss the action without the necessity of
hearing evidence on the basis that the pursuer's case does not aver a duty of
care nor does it aver the necessary causation. ... As, however, I have
concluded that the pursuer has failed by the Minute of Amendment to make
sufficient averments either of a duty of care or causation to allow the
matter to proceed any further, I have refused to allow the Record to be
amended in terms of the pursuer's Minute no 16 of process. As a consequence of the concession made by
Mr Sutherland that he did not have the relevant case without this Minute
of Amendment I have dismissed the action." Against that interlocutor the pursuer and appellant now appeals. |
Submissions for the pursuer and appellant
8. It was submitted that the Sheriff erred in refusing to allow the Minute of Amendment no 16 of process to be received and dismissing of the action. The essential point on behalf of the appellant was that in the circumstances averred in the Minute of Amendment the respondents were in occupancy and control of the block of flats. While it was accepted that the fire was set in the appellant's own flat, given that all the other flats in the block were entirely empty, the occupancy and control of the block as a whole was something which rested with the respondents as the owners of that property. In these circumstances it was submitted by the appellant that, in view of the prior history of fire raising and warnings from various people as set out in the pleadings, there was a sufficient probability or likelihood of a flat in that block being destroyed by fire caused by an act of vandalism. It was submitted that the particular circumstances of this case were only one example of a foreseeable chain of circumstances, and the situation did fall within the scope of "exceptional duty" described in the case of Maloco v Littlewoods Organisation Ltd 1987 SC (HL) 37. Alternatively, at the very least, it could not be said that it was impossible to bring the circumstances of this case within the scope of that duty and that was a matter which required to be tested by proof.
9. It was submitted that a consideration of the authorities supported the appellant's position that this case required to be tested by means of a proof before answer. I was referred to the test of relevancy described in Jamieson v Jamieson 1952 SC (HL) 44 per Lord Normand at page 50:
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"The
true proposition is that an action will not be dismissed as irrelevant unless
it must necessarily fail even if all the pursuer's averments are proved. The onus is on the defender who moves to
have the action dismissed, and there is no onus on the pursuer to show that
if he proves his averments he is bound to succeed" |
10.
I was also referred to the case of Miller
v South of
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"It is
at least clearly averred that the child did suffer a serious injury through
grasping a live wire which had been left in
situ by the respondents in an empty house which was shortly to be
demolished. Whether the happening of
such an event could reasonably have been foreseen by the respondents (which I
take to be the test of their liability) appears to me to depend upon a number
of circumstances which will no doubt be elucidated as the case proceeds." And at page 33: "It is
hardly necessary to say in a Scottish case that the law of negligence in |
11.
Drawing a parallel to the present case, the issue was whether
the happening of the fire set by vandals to the appellant's flat, in what was
otherwise a completely empty block of flats, when there was a prior history of
fire raising in an adjacent block of flats that had been empty, was something
which had to be determined essentially as a jury question looking at all the
circumstances of the case in order to see how foreseeable it was that such an
event could have occurred, and whether the respondents were at fault in failing
to provide security as they had been asked to do.
12.
The Sheriff had been directed to these passages in Jamieson v Jamieson supra and Miller v South of
13. The Sheriff accepted the submission made on behalf of the respondents to the effect that the occupancy and control of the flat in which the fire was started had passed to the appellant who was the tenant of that flat. However, the appellant argued that where the fire was started was not the relevant issue. What was important was the fact that vandals were allowed free access to the block of flats and therefore were at liberty to do what they wanted to any of the flats within the block completely unhindered. The history of events showed that, in this area, empty blocks of flats were a specific known attraction for vandals.
14. It was accepted by the appellant that there was no general duty on the owners of property such as the respondents to protect their tenants from acts of vandalism. That, however, was not the appellant's case. The appellant's case, it was submitted, did fall within the scope of liability which was envisaged in Maloco v Littlewoods Organisations Limited supra. In the Maloco case the company purchased a cinema with the intention of demolishing it and replacing it with a supermarket. Within three weeks of the date of entry young persons began to overcome the security of the cinema building by breaking into it. This occurred when the company's contractors were doing preliminary work inside the premises. Although these contractors locked and secured the premises when they finished work each night, they discovered on their return in the morning clear signs that the premises had been forcibly entered. When they finished their work their left the premises as secure as they could make them. Thereafter the security of the premises was again overcome by children and young persons. The beadle of a nearby church saw signs of someone having tried to light a fire inside the building and he extinguished a smouldering carpet. Subsequently a fire was deliberately started by young persons inside the cinema building in consequence of which a café and billiards saloon which lay close to the cinema on the west was seriously damaged and a church which also lay to the west but at a slightly greater distance from the cinema was so substantially damaged that it had to be demolished. The owners of the affected properties claimed damages in separate actions against the company for the damage done to their properties alleging that the damage was caused by negligence on the part of the company. These actions failed.
15. In that case in the House of Lords it was held:
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"(1)
that there was no general duty of care to prevent a third party from causing
damage to a pursuer or his property by the third party's deliberate
wrongdoing even though there was a high degree of foreseeability that this
might occur (2) that there were special circumstances in which the defender
might be held responsible in law for injury suffered by the pursuer though a
third party's deliberate wrongdoing (3) that an occupier who negligently
caused or permitted a source of danger to be created on his land could
reasonably foresee that third parties might trespass on his land and,
interfering with the course of danger, might spark it off, thereby causing
damage to the person or property of those in the vicinity ... (4) that the
question of whether liability should be imposed on defenders in a case where
a source of danger on his land had been sparked off by the deliberate
wrongdoing of a third party was a question to be decided on the facts of each
case, although cases for liability would be so imposed were likely to be very
rare; (5) that a defender might be held liable for damage to neighbouring
property caused by a fire started on his property by the deliberate
wrongdoing of a third party where he had knowledge or means of fire, or
indeed had started a fire, on his premises, and then failed to take such
steps as were reasonably open to him to prevent any such fire from damaging
neighbouring property; (6) that the empty cinema could not properly be
described as an unusual danger in the nature of a fire hazard and this was
fatal to any allegation that the defenders should be held liable on the
ground that they negligently caused or permitted the creation of an unusual
source of danger in the nature of a fire hazard; (7) that the defenders
should not be held liable for having failed to take reasonable steps to abate
a fire risk created by third parties on their property without their fault since,
if there was any such fire risk, they had no means of knowing that it existed
and (9) that, on the evidence, the existence of such a risk was not
established." |
16. I was referred to Lord MacKay of Clashfern at page 6 8 in Maloco:
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"In
summary, I conclude, in agreement with both counsel, that what a reasonable
man is bound to foresee in a case involving injury or damage by independent
human agency, just as in cases were such an agency plays no part, is the
probable consequences of his own act or omission but that, in such a case, a
clear basis will be required on which to assert that the injury or damage is
more than a mere possibility." |
17.
In this case the appellant's complaint was
uninterrupted and uncontrolled access to the block of flats, unoccupied apart
from the appellant's flat, constituted a set of special circumstances which
were brought about by the respondents where there was a well known and highly
foreseeable risk of fire raising by vandals in that block. It was submitted that in these circumstances
special security measures were needed in respect of the block of flats. It was the appellant's case that what
happened here was that the intruder came into the block of flats and set fire
to the appellant's flat at a time when the whole block was otherwise empty. There was no-one in the appellant's flat at
the time. Although the fire was set in
the appellant's own flat, this came about as a result of vandals trespassing in
the block of flats. The other flats in
the block had been boarded up, leaving the appellant's flat as an obvious
distinct and potential target. It was a
matter for proof whether a reasonable man, in the circumstances of the case, considered
this represented a hazard as a result of which the respondents had a duty to
take reasonable steps to prevent danger arising.
18. The Sheriff had found that a lack of specification was harmful to the appellant's efforts to make a relevant case. There was no averment as to the number of security guards needed and the hours during which they should be on duty. It was submitted that this was a matter for determination at proof. The point of pleadings was to give notice to the other side of the case they had to meet. What was complained about was, being aware of this hazard in circumstances where they had been requested to provide security guards and where police and fire service said security protection was an issue, and where they had previously provided security guards at a block of flats that were entirely empty, they ought in the circumstances of this case to have provided security guards to guard this flat.
19. It was submitted that the averments gave sufficient warning to the respondents of the case which was pled against them. In this case, notice had been given in the pleadings that the respondents had been warned of the risk and asked to take measures which they refused to do. It was submitted that, when the respondents requested further detail of what exactly would be necessary, they were asking for too much specification. The times during which security guards were required and the number of security guards were matters for proof. It was submitted that all that was needed at this stage was to say that, if security guards had been employed to guard the premises at the time, then the respondent would have complied with their duty to take reasonable care. If the court were to go along with the line of saying that the appellant's required to say how many guards ought to be employed at any time and the hours they should be employed, then logic suggested that, if that degree of specification was necessary, it would be also necessary to specify at what locus they should go on patrol, where they were to go on patrol and exactly what they were required to do. It was submitted that this was not a case like a maintenance case or a safe system of work case. It was submitted that the Maloco case demonstrated that it is perfectly proper to allow a proof on these issues to determine liability without making specific averments of what was required. This would be determined at proof.
20. It was pointed out that in the Maloco case the evidence was that only a 24 hour guard on the premises would have been likely to prevent the fire. It was tempting to say that the respondents should be given notice of every aspect of the case made against them, but, it was submitted, that this is not what the authorities demonstrated was required. It was submitted the appellant did not require to plead evidence - only to plead matters of fact. If one had regard to the facts relied on by the appellant, the respondents were asked before the fire to provide security guards. They refused to do so on the basis of cost. The respondents had previously employed security guards 12 hours a day for a block of unoccupied flats. The number of guards employed by them was within the knowledge of the respondents. It was submitted that the case of fault against the respondents was based on their failure to take steps which had previously been taken and this was all that the appellant required to do to demonstrate a relevant case. This was sufficient to allow a proof.
21. I was asked to distinguish the cases of Argyle & Clyde Health Board v Strathclyde Regional Council 1988 SLT 381, which was a case involving maintenance and Gibson v Strathclyde Regional Council 1992 SCLR 902, which was an inspection case.
22. It was submitted for the appellant that the averments regarding past use of security guards gave notice of what could reasonably be expected in this case. As the respondent knew how many security guards were employed on the previous occasion and subsequent to this incident, no further detail was required. Sufficient notice had been given of the appellant's case.
23. I was asked to uphold the appeal and allow the appellant's Minute of Amendment to be received.
Submission for the defenders and
respondents
24. I was asked to refused the appeal and adhere to the Sheriff's interlocutor. There was a motion before the Sheriff to have the Minute of Amendment received. There was a concession on behalf of the appellant, that, were the Minute of Amendment not received, the case would otherwise be irrelevant. As a result of the Sheriff's refusal to allow the Minute of Amendment to be received, the action was dismissed.
25. What was proposed by the Minute of Amendment was said before the Sheriff by the respondents not to mount a relevant case in law in that (a) the appellant failed to provide adequate specification of the duty averred and (b) in any event, even if there was sufficient specification, in law no such duty arose as that which was contended on behalf of the appellant. The Sheriff held that there was no point in proceeding with the amendment procedure as the proposed Minute of Amendment did not meet the relevancy test.
26. The case which was proposed to be introduced by the Minute of Amendment was that the landlord had a duty to the tenant to provide security guards of an indeterminate amount for an indeterminate period where there was no prior case of a break in to the premises which were the subject of the tenancy. There had been no case of a break in to occupied premises nor unoccupied premises in the block in which the appellant's flat was situated - only in unoccupied premises on the other side of the road. Shortly put, although the appellant narrated a number of incidents of break in and attempts of fire raising in the locality of the block of flats in which she was living, it was notable that at no time did the appellant aver prior break ins or attempt at fire raising in the block in which she was a tenant of one of the flats. The appellant averred break in and attempted fire raising in the context of a separate unoccupied block of flats. The distinguishing feature here was that the appellant was in occupation of her tenanted property. This point had not been recognised and appreciated by counsel for the appellant. This materially affected the issue.
27. If the appellant was correct, a remarkable burden would fall on the shoulders of landlords. Setting aside the issue of specification, the general proposition was that a landlord who knows there has been a break in or an attempt at fire raising in properties in proximity to that of which he is landlord, and these properties are all unoccupied, he has a duty to provide security guards in respect of the premises which he has leased to tenants who are in occupation. It was submitted that was an extreme proposition.
28.
It was occupancy and control that was one of the
cardinal consequences of tenancy. It was
submitted there were many areas in
29.
It was submitted the Sheriff was correct in rejecting
this proposition. He was also correct in
identifying a lack of specification in respect of the extent to which security
guards ought to have been provided, even if the duty to provide security guards
was incumbent upon the respondents. The
appellant had relied on the case of Jamieson
v Jamieson and Miller v South of
30. The rules of relevancy exist for a good reason. That is to save the defender the expense of being involved in a case where he has not been given fair notice of the case again him or, where it is clear, even if the pursuer proves all that he offers to prove, the law does not provide a remedy. The latter question was one of law. There may be a factual dispute, but for relevancy the court required to take the appellant's case at its highest. If in law the appellant's case was not relevant, the hearing of evidence would not make it relevant.
31. Dealing first with the issue of specification counsel for the respondents referred to the appellant's averments in condescendence 3 as follows:
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"The
defenders were under a duty towards the pursuer to take reasonable care to
prevent damage to her flat by vandals ... In all the circumstances it would
have been a reasonable step for the defenders to have employed security
guards to protect the pursuer's block of flats from acts of vandalism before
6 November. The defenders failed
to do so. Had the defenders done so
the pursuer's flat would not have been broken into and vandalised as
hereinbefore condescended upon. In
these circumstances the defenders were in breach of their duty of care
towards the pursuers." There was only a general
duty averred to provide security guards.
The respondents were not told how many guards should be provided or
for how long they should be employed. The
appellant averred that prior to the incident security guards were employed for
12 hours a day to protect an entirely unoccupied block of flats situated
adjacent to the block of flats in question and she further averred that after
the fire the respondents employed 24 hours a day security. The appellant's case was that had security
guards been provided, the contents of her flat would not have been destroyed
by fire. Perhaps, given infinite
resources and an infinite number of guards 24 hours a day, total
security could have been provided. However
the duty was not an absolute duty. The
duty was to take reasonable care. Part
of the assessment of the court regarding what was reasonable was the issue of
the extent that security cover ought to be provided. The respondents were entitled to know the
case they were expected to meet. They
did not know and accordingly could not ask a suitably qualified witness to
express a view on the extent of the security cover which the appellant claimed
was reasonable and on which she based her case. To be able to advise the respondents in
this case, the respondents advisers would require to know if the appellant
could establish that a certain number of guards supplied for a certain amount
of time was likely to prevent the fire or at least the damage caused by the
fire. Without that detail from the
appellant, the respondents' advisers were not in a position to advise the
respondents on the reasonableness of the precautions they were said to be
required to take. |
32. The appellant placed weight on an alleged failure by the respondents to provide security cover on the basis of cost with at least a hint of criticism that cost could not have been a relevant factor. The duty is to take reasonable care. Part of that involves a balance of the cost of a massive security presence against the risk which was anticipated. Accordingly it was entirely relevant to know what the appellant had not said, namely the number of security guards the appellant considered the respondents ought to have provided in this case. The appellant had identified 12 hour cover and 24 hour cover. The appellant had not averred which, if either, ought to have been provided in this case. If it was 12 hour cover, which she averred had been in place elsewhere prior to this incident for unoccupied blocks of flats, how was the appellant to prove, on her existing averments, that the break in occurred during the 12 hours when security cover ought to have been provided. The appellant did not aver when the break in occurred. She was not in a position to prove to the court that the break in occurred at a time when, in the exercise of reasonable care, security guards ought to have been provided. For whatever reason the appellant had declined to give further specification.
33. Additionally, the appellant must establish not only a duty and a breach of that duty, but also causation of the loss. Her loss in this case was the loss of possessions caused by the fire in her flat. There were no averments which show, if the case were to proceed, that the break in could have been detected in time for the fire to have been averted or otherwise extinguished before the damage to the property occurred. There were no averments to this effect. That goes to the question of the number of security officers which might have been provided. The appellant required to lay an adequate basis of fact upon which, if proved, she could show that the break in could have been detected. One officer monitoring an entire block of flats might reasonably be thought to be unlikely to provide constant monitoring of all areas within the block of flats. It would not be simply the appellant's property that he would be monitoring, because the appellant's case was that the vacant properties were all an attraction to vandals.
34. The appellant did not aver one security officer - she said "officers" i.e. two or more. The question arose as to how far up the line of numbers one had to go to reach the threshold at which the appellant could legitimately say "had that number been provided, the break in would have been detected in good time to prevent the loss which was sustained".
35. The Sheriff had been referred to the case of Gibson v Strathclyde Regional Council supra where it was held that:
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"in
order to succeed, the pursuer would have to establish that it was reasonable
and practicable to inspect the drains daily; that the pursuer could not do so
without leading evidence to justify that ascertain, for example, to the
effect that such a practice was followed by other local authorities or that
there were special local circumstances requiring such frequent inspection;
that such evidence could not be led without supporting averments; that, in
the absence of such averments, the pursuer's case for daily inspection was
irrelevant and the action should be dismissed." In that case it was not
enough to say "there is a duty to inspect".
Colour required to be given to such an averment. There required to be a factual basis on
which the pursuer could establish that a daily inspection was reasonable. |
36. As the Sheriff accepted in his note, Gibson was referred to by him as a useful analogy of the point here. As it was not enough there to say there was a duty to provide a system of inspection, so it was submitted in this case it was not enough for the appellant to say there was a duty to provide security guards. It was the respondents' position that the appellant required to make averments as to the number security guards that should have been provided and the times of day during which those guards should have been provided.
37. The respondents' first argument was that the appellant's case was irrelevant due to lack of specification and the appeal should be refused on that ground. Put shortly, it was the respondents' position that the appellant did not give adequate and fair notice of the facts she intended to prove which, if established, would yield the inference of fault.
38. Secondly, and in any event, it was suggested that the law did not recognise a duty on a landlord to protect his property against the actions of third parties in circumstances such as arose in this case. Regardless of the issue of specification, it was submitted that the case was still irrelevant. It was submitted that the appellant erred in seeking to equate fire raising in a block of flats that had been empty with fire raising in a flat that was still occupied. The appellant's case was not of a break in or fire raising in an empty flat of which the respondents had control, but of a break in and fire raising in her own flat where she was the tenant and as such exercised occupation and control. I was referred to Clerk & Lindsell on Torts as follows:
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"8.43 The Principle In Smith v Littlewoods Organisation Limited (another
reference for the Maloco case) Lord
Goff stated the fundamental principle that "the common law does not impose
liability for what are called pure omissions". ...
The principle only applies to pure omissions. 8.
44 Justification The
basis of the principle lies in the priority given by the common law to the
autonomy of the individual and, hence, the reluctance to require an
individual to act as if he or she were "my brother's keeper". In Stovin
v Wise (1996 AC 923 at 943/4) Lord Hoffman elaborated in the following
terms: "One
can put the matter in political, moral or economic terms. In political terms it is less of an
invasion of an individual's freedom for the law to require him to consider
the safety of others in his actions than to impose upon him a duty to rescue
or protect. A moral version of this
point may be called the "why pick on me?"
A duty to prevent harm to others or to render assistance to a person
in danger or distress may apply to a large and indeterminate class of people who
happen to be able to do something. Why
should one be held liable rather than another? In economic terms the efficient allocation
of resources usually requires an activity should bear its own cost ... But there is no similar justification for
requiring a person who is not doing anything to spend money on behalf of
someone else ... So there must be some
special reason why he should have to put his hand in his pocket." 8.47
Special reasons for affirmative duty Three
situations may be identified: First, where there is a special relationship
between the parties which entitles one party to rely on affirmative action
being taken by the other. Secondly,
where there is a specific assumption of responsibility by one party to act
affirmatively to benefit the other.
Thirdly, where one party must bear a specific responsibility for
protecting the other from harm caused by third parties. 8.51
Specific responsibility for protection from third parties - basis of
liability In Smith v Littlewoods Organisation Limited Lord
Mackay and Goff, who gave the leading judgments, agreed that there was no
general duty to prevent a third party from causing damage to another but
disagreed as to the reason and basis of exceptions to the general rule. Lord Mackay argued that the reason lay in
the difficulty of predicting whether a third party would cause damage as a
result of the defender's neglect. For
this reason the general principle of reasonable foreseeability would not be
easy to satisfy. It would only be
reasonable to foresee such third party intervention where it was
probable. Lord Goff disagreed,
considering that the reason for the limited duty was not the unpredictability
of human conduct but the more fundamental reluctance of the common law to
"impose liability for what are called pure omissions", taken along with "the
general perception that we ought not to be held responsible in law for the
deliberate wrongdoings of others".
Exceptions to this general proposition had to be based not on
"generalised principal", but on special circumstances given rise to "narrower
but still identifiable principles".
Lord Goof identified four such circumstances: (a)
where there is a special relationship between defendant and claimant
based on an assumption of responsibility by the defendant; (b)
where there is a special relationship between the defendant and the
third party based on control by the defendant; (c)
where the defendant is responsible for a state of danger which may be
exploited by a third party; and (d)
where the defendant is responsible for property which may be used by
third party to cause damage." It
is suggested that the approach of Lord Goff is to be preferred for two
reasons: first, as he noted, in some cases a duty had been imposed on the
basis of an assumption of responsibility, where the third party intervention
was not foreseeable as likely, and conversely, no duty had been imposed in
cases where it was foreseeable, for example, on occupiers to prevent third parties
from entering their property. Lord
Goff concluded that "The problems in these cases could (not) be solved simply
through the mechanism of foreseeability.
Secondly, since foreseeability was applied to this third party damage
situation in the leading 1960's decision of Dorset Yacht, the approach of the courts to questions of a duty
has become more sophisticated with use of proximity and justice as criteria
and the recognition that much attention has to be paid to the particular type
of relationship involved."" |
39. It was submitted that this case did not fall into any of the four circumstances set out by Lord Goff. Accordingly it was submitted that in these circumstances no duty of care arose.
40. I was referred to various dicta from the case of Maloco v Littlewoods, supra (which was referred to as Smith v Littlewoods in the dicta from Clerk & Lindsell which I have set out). It was submitted that in this case the appellant's loss was caused by a break in to her own flat. The appellant provided no basis in fact upon which it might be said that the respondents knew or ought to have known that there was a real risk of such an event taking place. At no point do they aver a break in at any other occupied premises, nor of fire raising at any occupied premises. There was no averment of break in or fire raising within the block of flats in which the appellant was the tenant. All that was said that there were break ins and fire raising in other blocks of flats which were totally empty.
41. It was accordingly submitted that on that prior factual basis the appellant had not placed the respondents in the category of having actual or constructive knowledge that premises occupied and secured by the tenant were likely to be broken into. There was no duty on those who have control of property to protect neighbouring property from the acts of third parties. There was no duty on the respondents to protect any property in the occupation and control of the appellant in the circumstances of this case.
42. It was submitted that the Sheriff was correct to hold that there was no duty of care on the part of the respondents towards the appellant. The circumstances of her case did not fit with any of the recognised categories of special duty identified by Lord Goff, nor did the appellant have a factual basis to bring herself into the high probability category desiderated by Lord Mackay. It was submitted the Sheriff was correct to say that the Minute of Amendment failed to set out a relevant case. He was accordingly entitled to refuse to allow it to be received.
Decision
43. I consider that the Sheriff reached the correct decision. In my opinion the submissions on behalf of the respondents in the appeal are to be preferred. I deal with the appeal under three heads:
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A. Whether in law there was a duty on the respondents in the circumstances of this case to take reasonable care to prevent damage to the appellant's property by vandals B. Esto there was such a duty, whether the appellant has relevantly specified such a duty on the respondents. C. Esto there was a duty and esto that duty was relevantly pled, whether breach of that duty caused the appellant's loss? I
deal with these in turn. |
A. Whether
in law there was a duty on the respondents in the circumstances of this case to
take reasonable care to prevent damage to the appellant's property by vandals
44. The appellant specifies that the duty of care she avers is incumbent on the respondents in condescendence 3 of the pleadings. I have set this out in detail in para 4 of this note. Basically, the appellant's position is that she was a tenant of the respondents. The flat occupied by her in the block of flats owned by the respondents was the only one occupied in the block. While she does not dispute that she had occupation and control of the flat in question, her case is that the respondents had occupation and control of the remaining flats in the block. The appellant points to acts of vandalism in empty blocks of flats in the neighbourhood of the block in question including fire raising. Because of these acts of vandalism in totally unoccupied blocks in the vicinity, the appellant claims that there was a real risk that one of the flats in the block in question, including the flat occupied by the appellant, would be the target of acts of vandalism. It is said this had been brought to the attention of the respondents. The appellant's case is that in these circumstances the respondents had a duty towards the appellant to take reasonable care to prevent damage to her flat by vandals and that it would have been a reasonable step for the respondents to have employed security guards to protect the appellant's block of flats from acts of vandalism before 6 November 1999.
45. I accept the submission made on behalf of the respondents that the distinguishing feature in this case was that the appellant was in occupation of her tenanted property. She had possession and control of the flat which was the subject of vandalism. The fire was set by vandals in the appellant's flat after they had broken into it. The previous history of vandalism to which the appellant referred related to totally unoccupied blocks of flats in the vicinity. The appellant was responsible for the security of her own flat.
46. I consider the following dicta of Lord Goff in Maloco to be decisive in this case:
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(i) pp
75/76 "But it must not be overlooked that a problem arises when the
pursuer is seeking to hold the defender responsible for having failed to
prevent a third party from causing damage to the pursuer or his property by
the third parties' own deliberate wrong doing. In such a case, it is not possible to
invoke a general duty of care; for it is well recognised that there is no
general duty of care to prevent third parties from causing damage ... Why does the law not recognise a general
duty of care to prevent others from suffering loss or damage caused by the
deliberate wrong doing of third parties?
The fundamental reason is that the common law does not impose
liability for what are called pure omissions ..." (ii) p
82 "For my part, I do not think that liability can be imposed on an occupier
of property in negligence simply because it can be said that it is reasonably
foreseeable, or even (having regard, for example, to some particular
temptation to thieves in adjacent premises) that it is highly likely, that,
if he fails to keep his property lockfast, a thief may gain access to his
property and thence to the adjacent premises.
So to hold must presuppose that the occupier of property is under a
general duty to prevent thieves from entering his property to gain access to
neighbouring property, where there is a sufficient degree of foresight that
this may occur. But there is no
general duty to prevent third
parties from causing damage to others, even though there is a high degree of
foresight that they may do so. The
practical effect is that everybody has to take such steps as he thinks fit to
protect his own property, whether house or flat or shop, against thieves. He is able to take his own precautions;
and, in deciding what precautions to take, he can and should take into
account the fact that, in the ordinary course of life, adjacent property is
likely to be from time to time unoccupied (often obviously so, and sometimes
for a considerable period of time) and is also likely from time to time not
to be lockfast. He has to form his own
judgement as to the precautions which he should take, having regard to the
circumstances of the case, including (if it be the case) the fact that his
premises are a jewellers shop which offers a special temptation to
thieves. I must confess that I do not find
that this practical result objectionable." |
47. The present case puts the appellant in an even weaker position than that which existed in Maloco. In that case the vandalism and fire had occurred in the premises in respect of which the defenders had some responsibility and had then spread to the pursuer's property. In this case the appellant's position is that the vandalism and fire occurred in her own property of which she had control as tenant. There is no averment which would place the liability on the respondents for the actings of the third party (vandals) in respect of the property over which the appellant herself is responsible. The Sheriff observed at para 13 of his note:
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"Lord
Goff, in Maloco, emphasised that
there is no general duty to "prevent" third parties from causing damage even
when it is likely that they will do so.
He emphasised the word "prevent" by using italics in his judgment. I consider that his opinion encapsulates
the flaw in the pursuer's case." Having
considered the dicta in the Maloco
case and the submissions made to me thereon, I consider the Sheriff was
correct to reach that conclusion. |
48. I am fortified in reaching that conclusion by a consideration of the four sets of special circumstances identified by Lord Goff in Maloco at page 77. He suggested that it was not in doubt that there were special circumstances in which a defender may be held responsible in law for injury suffered by a pursuer through a third parties' deliberate fault. He identified four sets of special circumstances which are referred to at para 8.51 in Clerk and Lindsell supra as follows:
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(a) Where there is a
special relationship between the defendant and claimant based on an
assumption of responsibility by the defendant. That is not applicable in this case. The relationship between the appellant and
respondents is that of landlord and tenant. (b) Where there is a special relationship
between the defendant and the third party based on control by the defendant. That is not applicable in this case. (c) Where the defendant is responsible for a
state of danger which may be exploited by a third party. While this particular exception might have
had some relevance if the fire had been started in an adjacent unoccupied
flat, in my opinion it does not apply to a situation where the vandals have
broken into the flat occupied by a tenant who, under the lease, has
possession and control of the flat and is responsible for the security
thereof. (d) Where the defendant is responsible for
property which may be used by a third party to cause damage. This is not applicable in this case. Accordingly consideration in
this case of the four sets of special circumstances which are the exceptions
to the general rule does not assist the appellant. |
49. For the reasons which I have given I consider that this is a case in which the court requires to dismiss the action without the necessity of hearing evidence on the basis that the appellant's case does not aver relevant a duty of care.
B.
Esto there was such a duty, whether the
appellant has relevantly specified such a duty on the respondents
50. I have to say that, even if I was of the view that in the circumstances of this case there was a duty of care on the respondents to take reasonable care to prevent her suffering loss in the manner alleged, I would have taken the view that the appellant's case failed for lack of specification of the alleged duty. The duty is put boldly
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"The
defenders were under a duty towards the pursuer to take reasonable care to
prevent damage to her flat by vandals ...
In all the circumstances it would have been a reasonable step for the
defenders to have employed security guards to protect the pursuer's block of flats
from acts of vandalism before As was submitted on behalf of the respondents, the appellant did not aver how many guards should be provided and for how long they should be provided. The duty is not an absolute duty. The duty is to take reasonable care. Part of the assessment of the court regarding what is reasonable is the issue of the extent that security cover ought to be provided. The respondents are entitled to know the case they are expected to meet. As the Sheriff stated at page 13 of his note: |
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"Furthermore,
I do not find in the pursuer's Minute of Amendment any adequate basis for her
contention that "The defenders had a duty towards the pursuer to take
reasonable care to prevent damage to her flat by vandals." I am also unable to find any adequate
specification in relation to the averment that "It would have been a
reasonable step for the defenders to have employed security guards to protect
the pursuer's block of flats from acts of vandalism before |
51. I agree with that conclusion. I do not accept the submission for the appellant that the number of security guards needed and the hours during which they should be on duty were matters for determination at proof. It was said on behalf of the appellant that the averments gave sufficient warning to the respondents of the case which was pled against them. I do not agree. I consider it was for the appellant to aver what would have been reasonable precautions in all the circumstances. This required specification of the number of guards and the times in which they should be on duty. When that specification was provided, the respondents would be able to take proper advice as to the conduct of the litigation. Without that specification, in my opinion, there is no relevant case. As has already been noted, Lord Normand in Jamieson v Jamieson supra said:
|
"the
true proposition is that an action will not be dismissed as irrelevant unless
it must necessarily fail even if the pursuer's averments are proved." In this case the appellant's averments could not be proved as they totally lack specification. The result is that the appellant's case must also fail on this basis. |
C.
Esto there was a duty and esto that duty was relevantly pled, whether
breach of that duty caused the appellant's loss
52. On the basis that there was a duty of care and that proper specification of that duty had been given, I am also required to consider whether breach of that duty, on the basis of the pleadings, could be said to have caused the appellant's loss. The appellant's case is in condescendence 3:
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"In all
the circumstances it would have been a reasonable step for the defenders to
have employed security guards to protect the pursuer's block of flats from
acts of vandalism before In my view the appellant also fails on this ground. The appellant's case is that, if security guards has been provided, the appellant's flat would not have been broken into and vandalised. The appellant does not specify the number of guards reasonably required or the times at which they should reasonably have been on duty. There requires to be a causal connection between the breach of duty and the loss. There require to be averments to indicate how the loss occurred as a result of the breach of duty. There are no averments of the time of the loss or the time of the fire. Without details as to how and when the vandals managed to gain entry to the appellant's property it is impossible to suggest that the respondents alleged failure to provide security guards would have prevented the vandalism and fire occurring. There are no averments which show, if the case were to proceed, that the break in could have been detected in time for the fire to have been averted or otherwise extinguished before the damage to the property occurred. I accept the submission made that the appellant requires to lay an adequate basis of fact upon which, if proved, she could demonstrate that the break in could have been avoided or detected and the loss avoided. There is a total lack of specification on the question of causation. |
53. I accordingly take the view that on all three issues this appeal fails. In the circumstances the respondents are entitled to their expenses in respect of the appeal. I was informed that the appellant was in receipt of legal aid and accordingly I have awarded expenses on the basis that the appellant is an assisted person. I have certified the appeal as suitable for the employment of counsel.