The Court of Appeal has recently handed down the decision in Rushbond plc v The JS Design Partnership LLP [2021] EWCA Civ 1889, which provides useful guidance on the duty of care owed by one party to another where a third party causes damage to one of the party’s property.
Background
The claim concerned a historic cinema in central Leeds owned by Rushbond. The Defendant firm, JS Design, had been employed as an architect by a potential purchaser of the cinema. Mr Jeffreys of JS Design was given the keys to inspect the premises. After his arrival at the cinema, Mr Jeffreys failed to lock the door behind him and, at some stage during Mr Jeffreys’ visit, an intruder entered the cinema. After the architect had left, the intruder started a fire which destroyed the cinema’s roof and interior, causing £6.5 million worth of damage.
Decision
Rushbond sued JS Design for £6.5 million, alleging negligence. The claim lay only in tort, as Rushbond had no contract with JS Design.
The court at first instance held that the case was one of “pure omission” because the architect’s failure to lock the door during the site visit was merely the occasion for the intruder to gain access to the building. The Court of Appeal disagreed. It found this was not a pure omissions case as the respondent architect’s alleged negligence arose in the context of its carrying out of a particular activity – inspecting the premises. This was not a case in which the respondent did nothing at all; by failing to lock the door after he entered the building, Mr Jeffreys had created the opportunity for an intruder to enter.
Moreover, the Court of Appeal held that it was “fanciful” to suggest that, whilst the sole occupant of the property, trusted with the keys, the respondent architect owed no duty of care to the claimant to take reasonable precautions as to security.
Implications
The case demonstrates the narrow approach the Courts will take to the application of the “pure omissions” rule. For construction professionals this case serves as a useful reminder that duties might extend beyond the narrow scope of the professional services being provided.
Constructions professionals should exercise caution and common sense in all aspects of their instruction.
