The plaintiff was the tenant of a flat in a block of flats owned by the defendant. When the flat immediately above the plaintiff’s flat became vacant, she requested the defendant to board it up so as to secure it against intruders. The defendant took no effective steps to secure the upper flat and on three occasions vandals broke in and damaged water pipes in that flat allowing water to escape down into the plaintiff’s flat where it caused damage. The plaintiff claimed damages against the defendant, alleging that it owed her a duty of care so to secure the vacant flat as to prevent vandals gaining access to it. The trial judge found that it would not have been possible to take effective steps in the situation disclosed in the evidence which could defeat the activities of vandals and dismissed the plaintiff’s claim. The plaintiff apealed.
Held: The appeal failed.
Purchas LJ said: ‘The judge’s finding is, in my judgment, determinative of this appeal. Summarizing his judgment, he said: ‘Regrettably . . I find that it is not possible for effective steps to be taken in a situation like this which could defeat the activities of vandals.’ Whether this finding, together with the established circumstances of the council, should operate to restrict the ambit of the duty to take any positive steps to secure the property, or duty arising in relation to an omission to take such steps; or whether it operates to break the chain of causation, may, as Robert Goff L.J. suggested in [the] passage which I have just cited from Paterson Zochonis Ltd. v. Merfarken Packaging Ltd. [1983] F.S.R. 273, 299, not be essentially material. Personally I prefer the former approach and would limit the area of the duty itself in the circumstances prevailing in this case. In either event, in my judgment the judge was right to hold that the council owed no duty to the plaintiff in respect of the acts of the vandals in this case and accordingly I would dismiss this appeal.’
Nicholls LJ said: ‘I am unable to accept that any material ground of distinction exists between the two cases. In P. Perl (Exporters) Ltd. v. Camden London B.C., as in the instant case, the plaintiff sought to make the defendant occupier liable in negligence for the wrongdoing of a third party. In his judgment Robert Goff L.J. set out, at p. 359 . . some examples of circumstances where there may be liability for a third party’s wrongdoing, and concluded that those instances were very different from that case where, as in the present case, the allegation was that the defendant failed to exercise reasonable care to prevent a third party from causing damage to the plaintiff. In his preface to that passage Robert Goff L.J. assumed that there might well be cases where the occupier could reasonably foresee that thieves might use the unprotected property as a means of access to neighbouring property. But he, in common with the other members of the court, rejected the existence of the broad duty of care contended for by the plaintiff’s counsel, and his conclusion was to the effect that in the absence of a special relationship, there was no duty to prevent thieves from so using one’s property. I cannot see any distinction in principle between a case where the damage arises from the third party using the defendant’s property as a means of obtaining unauthorised access to the plaintiff’s property and there committing theft, and one where the damage arises from the third party so conducting himself on the defendant’s property as to damage the plaintiff’s property by causing water to escape from the former property to the latter. Nor can I see that it is material that the defendant had a responsibility to take reasonable steps to prevent the escape from its property of water in an ordinary domestic water system. I do not consider that there is a greater responsibility on the defendant because the third party caused damage by creating an escape of water than if the damage had been caused by the third party lighting a fire on the defendant’s property or, if the defendant’s property had been on the top floor of the building, by the third party stripping lead from the roof and thereby permitting rain to enter and eventually to reach and damage the plaintiff’s property.’
Judges:
Purchas and Nicholls LJJ, Caulfield J
Citations:
[1986] CLY 2260, [1986] 3 All ER 544, [1986] 1 WLR 890, [1986] 1 EGLR 181, (1986) 84 LGR 871
Jurisdiction:
England and Wales
Cited by:
Cited – Smith v Littlewoods Organisation Limited (Chief Constable, Fife Constabulary, third party); Maloco v Littlewoods Organisation Ltd HL 1987
The defendant acquired a semi derelict cinema with a view to later development of the site. A fire started by others spread to the pursuer’s adjoining property.
Held: The defendants were not liable in negligence. The intervention of a third . .
Lists of cited by and citing cases may be incomplete.
Negligence, Landlord and Tenant
Updated: 15 August 2022; Ref: scu.193431
