[2.5] SMith v Littlewood PDF

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Torts: Negligence...

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Smith and Others v Littlewoods Org Ltd Area of law concerned:

Negligence- Third Party intervention

Court:

House of Lords

Date:

1987

Judge:

Lord Mackay, Lord Gof

Counsel: Summary of Facts:

Youths entered the defendant’s disused cinema, and set it on fire. There was damage to neighbouring premises.

Relief sought: Issues:

Relevant Statute(s): Procedural History: Plaintiff/Appellant’s arguments Defendant/Respondent’s arguments: Result:

Donoghue v Stevenson should apply to cases where the damage in question was caused by human agency. (A la Dorset Yachti)

Judge’s reasoning:

Lord Mackay While it was probable that children and young persons might attempt to break into the vacated cinema, this by no means establishes that it was a probable consequence of its being vacated with no steps being taken to maintain it lockfast that it would be set on fire with consequent risk of damage to neighbouring properties. The fire with damage was not necessarily a probable consequence of the children entering the premises (which was foreseeable)

No one made any protest to them about the state of the premises, or indicated to them any concern that, unless they took some action, neighbouring premises were at risk. In Littlewoods’ favour. Police weren’t ever informed either. This is taken as evidence that no one anticipated any adverse consequences.

There was concern raised once, about the possibility of fire, but it was not apparently sufficiently substantial to prompt any further action. It is plain from authorities that the fact the damage on which a claim is founded was caused by an independent human agent does not, of itself, preclude success of the claim, since breach of duty on the part of the person against whom the claim is made may also have played a part in causing the damage. A third party cause of damage does not always absolve the defendant of liability.

The more unpredictable the conduct in question, the less easy to affirm that any particular result from it is probable/ and in many circumstances the only way in which a judge could properly be persuaded to come to

the conclusion that the result was not only possible but reasonably foreseeable as probable would be to convince him that, in the circumstances, it was highly likely. A threshold for foreseeability by a third party intervention.

In this type of case a finding that the reasonable man should have anticipated the consequence of human action as just probable may not be a very frequent option. Human action is not predictable, and thus should have a higher threshold.

Note the difference between ‘human action’ and ‘consequences of that action!!’ Unless the judge can be satisfied that the result of the human action is highly probable or very likely he may have to conclude that all that the reasonable man could say was that it was a mere possibility. Differentiate between a mere possibility and a likely event

I conclude that what the reasonable man is bound to foresee in a case involving injury or damage by independent human agency, just as in cases where such 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. Self-explanatory?

In Dorset Yacht, the boys escaping on a stolen yacht was very likely, as they were likely to escape, and a yacht was the only way that they could escape. P Perl (Exporters) Ltd v Camden London BC defendants had a broken lock. Burglaries were foreseeable, but they were held not to be liable for burglars that broke into their basement, smashed a whole in the wall and stole from their neighbours. Bottom of page 367

Gof LJ: ‘it is exceptional to find in the law a duty to control another’s actions to prevent harm to strangers.’ Only special cases where very strong foreseeability.

In Stansbie v Troman, a decorator who left his client’s door open and unattended, resulting in a thief taking property from their house was liable to his client. Although there was no special relationship between decorator and thief. There was a contract between decorator and plaintif. The decorator was liable because the harm was ‘a direct result of his negligence that the thief got in through this door left unlocked.’ A reasonable man would have secured the door, for the reason to prevent the consequence that he should reasonable foresee of unauthorised intrusion. But if the thief had bored a hole through the wall, he would not have been liable. A useful and simple case highlighting the principle.

If the owner of the first house finds a thief boring a hole into the wall

with the intention of breaking into a second, the owner of the first house has a duty of care to the owner of the second, however. The diference between theft cases and cases of fire where damage is caused to a neighbour are is that fire is created on the first occupiers premises. Even if it is caused by a trespasser, once he knows of the physical facts giving rise to the hazard, he has a duty to take reasonable care to prevent the spread of that hazard. Distinguishing between fire and thef

If the test of the standard of the reasonable man is applied to the steps an occupier of property must take to protect neighbouring properties from the hazard of fire arising on his property no further consideration of policy arises that should lessen the responsibility of the occupier in a case such as this… Lord Goff 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 party’s own deliberate wrongdoing. 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 such damage. Even when they are neighbours. Neighbour is not required to be a watchdog.

The common law does not impose liability for what are called pure omissions. Weld-Blundell v Stephens- the voluntary act of another, independent of the defendant’s fault, is regarded as a novus actus interveniens which breaks the cause of causation. We ought not be held responsible in law for the deliberate wrongdoing of others.

The general duty There is a general circumstance in which a defender may be held liable in negligence to the pursuer, although the immediate cause of the damage sufered by the pursuer is the deliberate wrongdoing of another. This may occur where the defender negligently causes or permits to be created a source of danger, and it is reasonably foreseeable that third parties may interfere with it and, sparking of the danger, thereby cause damage to persons in position of the pursuer. If the defender causes the source of danger

In Haynes v Harwood a horse-drawn van was left unattended. A boy threw a stone at the horses and the horses bolted, injuring a police officer. The defendant ought to have foreseen that they had created a source of danger by leaving the horses unattended on the street. Creation of the danger.

It is, in my opinion, consistent with the existence of such liability that an occupier who negligently causes or permits a source of danger to be created upon his land, and can reasonably foresee that third parties may trespass on his land, and, interfering with the source of danger,

may spark it off, thereby causing damage to the person or property of those in the vicinity, should be held liable to such a person for damage so caused to him. If there is a creation of danger on the land, sparking off by third parties may be foreseeable.

For example, a person who buys a substantial quantity of fireworks for a display stores these in an unlocked garden shed right beside a neighbouring house. It is well known he does this. Mischievous kids open the shed and set of some of the fireworks, burning down the neighbouring house. Liability may well be imposed in such a case.

But liability should only be imposed under this principle in cases where the defender has negligently caused or permitted the creation of a source of danger on his land, and where it is foreseeable that third parties may trespass on his land and spark it off, thereby damaging the pursuer or his property. Strict limits to this authority.

However, it would be wrong to hold common household items such as matches or stoves to be considered such dangers in today’s world. These don’t count as dangers.

Another basis for liability: arises where knowledge or means of knowledge that ta third party has created or is creating a risk of fire, or indeed has started a fire, on his premises, and then fails to take such steps as are reasonably open to him to prevent any such fire from damaging neighbouring property. Eg if he knows people regularly break in and start fires on his property, he should take measures to keep them out. On this case I cannot see that the defenders should be held liable under either of these two possible heads of liability. First, I do not consider that the empty cinema could property be described as an unusual danger in the nature of a fire hazard. … 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 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 efect is that everybody has to take such steps as he thinks fit to protect his own property, whether house of 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, and also it’s time to time not going to be lockfast. He has to form his own judgment as to the precautions he should take including all the circumstances. The practical aspect of this case.

Even for vandals, there shouldn’t be an unreasonable burden on ordinary householders. See example on bottom p374

I do not think that the problem in these cases can be solved simply through the mechanism of foreseeability. When a duty is cast on a person to take precautions against the wrongdoing of third parties, the ordinary standard of foreseeability applies; and so the possibility of such wrongdoing does not have to be very great before liability is imposed. I do not subscribe to the opinion that liability for the wrongdoing of others is limited because of the unpredictability of human conduct. To impose a general duty on occupiers to take reasonable care to prevent others from entering their property would impose an unreasonable burden on ordinary householders and an unreasonable curb on the ordinary enjoyment of their property. I am also of the opinion that to do so would be contrary to principle. It is very tempting to try to solve all problems of negligence by reference to an all-embracing criterion of foreseeability, thereby efecttive reducing all decisions in this field to questions of fact… but the law has to accommodate all the untidy complexity of life, and there are circumstances where considerations of partial justice impel us to reject a general imposition of liability for foreseeable damage. What can be learned from this case....