Overcoming the Pure Omissions rule in a Fire Damage Case

The Court of Appeal's decision in Rushbond Plc –v- The JS Design Partnership LLP [2021] EWCA Civ 1889, delivered 14 December 2021, provides a welcome rejection of an attempt to assert there can be no duty of care where a claimant's building had been rendered insecure by a defendant visitor who, for the purposes of his visit, disabled the protections in place, and the supposed application to such a case of the general rule that there is no liability for "pure omissions".

The case arises out of a fire in a large disused building in the city centre of Leeds.  An architect carried out an unaccompanied visit to the property, for the purposes of which he was provided with a key to the locked door and the code for the intruder alarm.  Using the key and the code, he unlocked and unset the door and the alarm and left them in such a state for the duration of his 1 hour visit (during which he could not and did not keep the entrance under observation).  It was maintained on Rushbond's behalf that this enabled a trespasser to enter the building through the insecure entrance, and that it was he who then started the fire.

With there having been no contract in place between building owner and the architect (who was appointed, instead, by a potential purchaser of the property to make an assessment of it), the Defendant maintained that there could be no relevant duty of care owed in tort by it to the building owner, on the basis that there could be no such duty owed for pure omissions and/or for criminal actions of third parties consequent thereon.

The Defendant succeeded on such an argument before O'Farrell J, who accordingly struck out the claim.  But the Court of Appeal has allowed the Claimant's appeal against her decision and reinstated the claim.  The key to the case is that it involved the element of the Defendant having worsened (and not just failed to make better) the security in place, in the context of it being a claim for damage to the Claimant's property arising from failure to keep that property secure (as opposed to the situation where a claim is made for damage to, say, an adjacent property).  The decision is accordingly of potential assistance in relation to other cases where property belonging to a claimant has been damaged through the unlawful acts of a third party, but a defendant can be said to have a responsibility for reducing the security measures in place for protecting its property against such acts.

Geoffrey Brown acted on behalf of the Claimant, instructed by Hanna Platt of BLM and led (in the Court of Appeal) by Ben Elkington QC.