Perl (P) (Exporters) Ltd v Camden London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WALLER,LORD JUSTICE OLIVER,LORD JUSTICE ROBERT GOFF |
| Judgment Date | 30 June 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J0630-3 |
| Docket Number | 83/0299 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 June 1983 |
[1983] EWCA Civ J0630-3
Lord Justice Waller
Lord Justice Oliver
Lord Justice Robert Goff
83/0299
1978 P. No. 3490
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (MR BARRY CHEDLOW, Q.C.)
Royal Courts of Justice,
MR MICHAEL TURNER, Q.C and MR N. TIMMS (FOR MR J. TRENCH) (instructed by Messrs. Barlow, Lyde & Gilbert) appeared on behalf of the Appellants.
MR D. BROWNE (instructed by Messrs. David Alterman & Sewell) appeared on behalf of the Respondents.
This is an appeal from a decision of Mr Barry Chedlow, Q.C., sitting as a Deputy High Court Judge and given on 25th March, 1982. He awarded damages to the plaintiffs of £12,338.93, arising out of a theft by unknown third parties at their premises at 142, Southampton Row. The appellants own 142, Southampton Row and also 144, Southampton Row, 144 being premises divided into flats. The respondent company is the tenant of 142. As part of the premises let to the respondents there is a basement which was used by the respondents for the storage of clothing in connection with their business and at the relevant time was used for the storage of a quantity of Scottish sweaters. As part of 144 one of the flats was an unoccupied basement flat adjoining the basement of 142 separated by an eighteen inch wall and with no direct communication with it. The entrance to 144 as through a double doorway into a lobby with another double door at the other side, then a short distance across the ground floor and then down some stairs into a light well the floor of which was at basement level. The access to the basement flat was up some steps at the opposite end of the light well into a corridor branching off the main corridor. There were two windows from part of the respondent's premises which looked on to the light well but these windows were barred and wired with a burglar alarm.
The evidence was that there were no locks on the front door at the time of the burglary, that there had been no catch on the door at the top of the stairs leading to the bottom of the light well and that the door leading into the basement flat was off its hinges. Furthermore, tramps and vagrants had been seen in the light well. There had been a number of complaints to the appellants about the lack of security at the flats and there had also been several burglaries but little or nothing had been done about this up to the 22nd May, 1977. Over the week-end of 22nd May, 1977, thieves knocked a hole into the common wall between the vacant flat in the basement of 144 and the basement of 142, the wall being an eighteen inch thick brick wall, and through this hole a slim person was able to climb and over 700 garments were stolem. The judge held that there was an absence of reasonable care on the part of the respondents in that the appellants had continuously neglected to supply a secure structure and should have known that vandals, tramps and undesirables were continuously on their structure and therefore it should have been foreseen that damage to property would ensue. He held that the simplest inspection would have revealed a situation which any prudent landowner should not have allowed to have continued. The judge accordingly held that there was an absence of reasonable care and awarded damages to the respondents.
Mr Turner, on behalf of the appellants, submitted that the learned judge had applied the wrong test in that he had considered the landlord's duty towards those lawfully in their own premises and had not distinguished that duty from the duty of the occupier of one set of premises to the occupier of adjoining premises. He submitted that the defendants were not under any duty to occupiers of adjoining property or alternatively if they were under a duty it would be to refrain from doing acts which could be foreseen to be very likely to cause damage and they were not in breach of such duty.
Mr Browns on behalf of the respondents submitted that there was a duty of care and that the appellants owed such duty even though the immediate cause of the damage was the act of third parties. He submitted that the appellants' knowledge of the valuable goods held by the respondent in his storeroom, the presence of unauthorised persons in No. 144 and the state of the doors and locks upon the doors were such that the breaking in and stealing was foreseeable and accordingly the appellants were liable.
The facts of this case raise certain questions of principle. If the judgment is right the appellants are liable for the acts of third parties whose identity is unknown. Furthermore although on the facts of this case there was very considerable carelessness on the part of the appellants' staff, if the appellants are liable to the defendants it would follow that in many cases the duty of care imposed upon householders to their neighbours would be very different from that which they have always been understood to be.
The first question to consider is in what circumstances a defendant will be responsible for the acts of a third party. In Dorset Yacht Co. v. Home Office (1970) A.C.1004 at 1055, Lord Pearson considering this problem in relation to the facts of that case, the case being one where Borstal boys escaped from their supervisors said: "Act of third party: In Weld-Blundell v. Stephens (1920) A.C 956, 986, Lord Sumner said:
"In general (apart from special contracts and relations and the maxim respondeat superior), even though A is in fault, he is not responsible for injury to C which B, a stranger to him, deliberately chooses to do."
In Smith v. Leurs, 70 C.L.R. 256–262, Dixon J. said:
"…apart from vicarious responsibility, one man may be responsible to another for the harm done to the latter by a third person; he may be responsible on the ground that the act of the third person could not have taken place but for his own fault or breach of duty. There is more than one description of duty the breach of which may produce this consequence. For instance, it may be a duty of care in reference to things involving special danger. It may even be a duty of care with reference to the control of actions or conduct of the third person. It is, however, exceptional to find in the law a duty to control another's actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third. There are, however, special relations which are the source of a duty of this nature. It appears now to be recognised that it is incumbent upon a parent who maintains control over a young child to take reasonable care so to exercise that control as to avoid conduct on his part exposing the person or property of others to unreasonable danger. Parental control, where it exists, must be exercised with due care to prevent the child inflicting intentional damage on others or causing damage by conduct involving unreasonable risk of injury to others."
In my opinion, this case falls under the exception and not the rule, because there was a special relation. The Borstal boys were under the control of the defendants' officers, and control imports responsibility. The boys' interference with the boats appears to have been a direct result of the defendants' officers' failure to exercise proper control and supervision. Problems may arise in other cases as to the responsibility of the defendants' officers for acts done by Borstal boys when they have completed their escape from control and are fully at large and acting independently. No such problem faces the plaintiffs in this case."
We were also referred to the case of Hosie v. Arbroath F.C. (1978) S.L.R. 122, where the football club were held liable for injuries caused when spectators broke through a defective gate and caused injury to one man. Thus parents may be responsible for the acts of their children, the relationship of Borstal staff to Borstal boys on an exercise on an island may make the staff responsible, or a football club may be responsible for the actions of spectators whom they have invited to their premises. But no case has been cited to us where a party has been held liable for the acts of a third party when there was no element of control over the third party. While I do not take the view that there can never be such a case I do take the view that the absence of control must make the court approach the suggestion that there is liability for a third party who was not under the control of the defendant with caution.
The next question to consider is the nature of the duty of the appellant as occupier of No. I44 to the respondents as occupiers of the adjoining property No. 142. In Dorset Yacht Co. v. Home Office, the case to which I have already referred, where the House of Lords held that the Home Office were liable when seven Borstal young offenders escaped and damaged a yacht in trying to escape from Brownsea Island where they were. Lord Reid, at page 1030 said:
"These cases show that, where human action forms one of the links between the original wrongdoing of the defendant and the loss suffered by the plaintiff, that action must at least have been something very likely to happen if it is not to be regarded as novus actus interveniens breaking the chain of causation. I do not think that a mere foreseeable possibility is or should be sufficient, for then the intervening human action can more properly be regarded as a new cause than as a consequence of the original wrongdoing. But if the intervening action was likely to happen I do not think that it can matter whether that action...
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