Smith v Littlewoods Organisation Ltd; Maloco v Littlewoods Organisation Ltd

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Keith of Kinkel,Lord Brandon of Oakbrook,Lord Griffiths,Lord Mackay of Clashfern,Lord Goff of Chieveley
Judgment Date05 Feb 1987
Judgment citation (vLex)[1987] UKHL J0205-1
Docket NumberNo. 2.

[1987] UKHL J0205-1

House of Lords

Lord Keith of Kinkel

Lord Brandon of Oakbrook

Lord Griffiths

Lord Mackay of Clashfern

Lord Goff of Chieveley

Rev. F. T. Smith and Others
(Appellants)
and
Littlewoods Organisation Limited
(Respondents) (Scotland)
Maloco
(Appellant)
and
Littlewoods Organisation Limited
(Respondents) (Scotland)
(Consolidated Appeals)
Lord Keith of Kinkel

My Lords,

1

I have had the advantage of considering in draft the speeches to be delivered by my noble and learned friends Lord Mackay of Clashfern and Lord Goff of Chieveley. I agree with them, and for the reasons they give would dismiss these appeals.

Lord Brandon of Oakbrook

My Lords,

2

It is axiomatic that the question whether there has been negligence in any given case must depend on the particular circumstances of that case. That being so, I do not think that these appeals can in the end be determined by reference to other reported cases in which the particular circumstances were different, even though some degree of analogy between such other cases and the present one can legitimately be drawn. Nor do I think that it is possible, however helpful it might otherwise be, to lay down any general principle designed to apply to all cases in which the negligence alleged against a person involves the unauthorised acts of independent third parties on premises owned or occupied by that person.

3

The particular facts of the present case appear to me to raise two, and only two, questions, on the answers to which the determination of the appeals depends.

4

The first question is what was the general duty owed by Littlewoods, as owners and occupiers of the disused cinema, to the appellants, as owners or occupiers of other buildings near to the cinema. The answer to that question is, in my view, that Littlewoods owed to the appellants a duty to exercise reasonable care to ensure that the cinema was not, and did not become, a source of danger to neighbouring buildings owned or occupied by the appellants.

5

The second question is whether that general duty encompassed a specific duty to exercise reasonable care to prevent young persons obtaining unlawful access to the cinema, and, having done so, unlawfully setting it on fire. The answer to that question, in accordance with general principles governing alike the law of delict in Scotland and the law of negligence in England, must depend on whether the occurrence of such behaviour was reasonably foreseeable by Littlewoods. It should have been reasonably foreseeable by Littlewoods if they had known of the activities of young persons observed by certain individuals in the locality. But they did not know of such activities because the individuals concerned did not inform either Littlewoods or the police of them, nor did the police themselves observe them. In the absence of information about such activities, either from the individuals referred to or from the police, I am of opinion that the occurrence of the behaviour in question was not reasonably foreseeable by Littlewoods. I conclude, therefore, that the general duty of care owed by Littlewoods to the appellants did not encompass the specific duty referred to above.

6

For these reasons I would dismiss the appeals.

Lord Griffiths

My Lords,

7

I regard these appeals as turning upon the evaluation and application of the particular facts of this case to a well established duty and standard of care. I agree so fully with the statement and evaluation of the facts appearing in the speech of my noble and learned friend, Lord Mackay of Clashfern, that I can state my own reasons for dismissing these appeals very shortly.

8

The duty of care owed by Littlewoods was to take reasonable care that the condition of the premises they occupied was not a source of danger to neighbouring property.

9

The standard of care required of them was that stated in general terms by Lord Radcliffe in Bolton v. Stone [1951] A.C. 850, 868 and expanded in more particularity by Lord Wilberforce in Goldman v. Hargrave [1967] 1 A.C. 645 when dealing with a fire upon premises caused by an outside agency. I refrain from citing these passages as both appear in the speech of my noble and learned friend, Lord Mackay of Clashfern.

10

Listening to the seductive way in which Mr. MacLean developed his argument on the facts step-by-step, as described by Lord Mackay, I was reminded of the fable of the prince who lost his kingdom but for the want of a nail for the shoe of his horse. A series of foreseeable possibilities were added one to another and, hey presto, there emerged at the end the probability of a fire against which Littlewoods should have guarded. But, my Lords, that is not the common sense of this matter.

11

The fire in this case was caused by the criminal activity of third parties upon Littlewoods' premises. I do not say that there will never be circumstances in which the law will require an occupier of premises to take special precautions against such a contingency but they would surely have to be extreme indeed. It is common ground that only a 24-hour guard on these premises would have been likely to prevent this fire, and even that cannot be certain, such is the determination and ingenuity of young vandals.

12

There was nothing of an inherently dangerous nature stored in the premises, nor can I regard an empty cinema stripped of its equipment as likely to be any more alluring to vandals than any other recently vacated premises in the centre of a town. No message was received by Littlewoods from the local police, fire brigade or any neighbour that vandals were creating any danger on the premises. In short, so far as Littlewoods knew, there was nothing significantly different about these empty premises from the tens of thousands of such premises up and down the country. People do not mount 24-hour guards on empty properties and the law would impose an intolerable burden if it required them to do so save in the most exceptional circumstances. I find no such exceptional circumstances in this case and I would accordingly dismiss the appeals.

13

I doubt myself if any search will reveal a touchstone that can be applied as a universal test to decide when an occupier is to be held liable for a danger created on his property by the act of a trespasser for whom he is not responsible. I agree that mere foreseeability of damage is certainly not a sufficient basis to found liability. But with this warning I doubt that more can be done than to leave it to the good sense of the judges to apply realistic standards in conformity with generally accepted patterns of behaviour to determine whether in the particular circumstances of a given case there has been a breach of duty sounding in negligence.

Lord Mackay of Clashfern

My Lords,

14

The defenders and respondents in these consolidated appeals, to whom I shall refer as "Littlewoods," purchased the Regal Cinema in the centre of Dunfermline from its previous owners with entry on 31 May 1976. Littlewoods' intention was to demolish the cinema within a short time and to replace it by a supermarket. On 5 July 1976, in consequence of a fire which began in the cinema, a cafe and billiard saloon which lay close to the cinema on the west known as the Cafe Maloco was seriously damaged and St. Paul's Church which lay also to the west but at a slightly greater distance from the cinema was so substantially damaged that it had to be demolished. Dunfermline lies within the area of the Fife constabulary. The issues in both actions are the same and they have been heard together at every stage. The owners of the affected properties to whom I shall refer as "the appellants" claimed against Littlewoods for the damage done to their properties alleging that the damage was caused by negligence on the part of Littlewoods. Littlewoods, in turn, claimed that if they were at fault the Chief Constable of the Fife Constabulary or his officers were also at fault and he should be held liable to make a contribution to the award made against Littlewoods. The Lord Ordinary held that the claims had been established against Littlewoods and pronounced awards in favour of both owners. He found that Littlewoods' case against the Chief Constable had not been established. Littlewoods accepted the decision relating to the Chief Constable but reclaimed against the awards which had been made against them. The First Division of the Inner House of the Court of Session 1986 S.L.T. 272 unanimously allowed the reclaiming motions and recalled the Lord Ordinary's interlocutors. The First Division also dealt with matters relating to the size of the award made in favour of the owners of St. Paul's Church.

15

The appellants have now appealed to this House and have argued that the Lord Ordinary's interlocutors should be restored, subject to alteration in the amount awarded in favour of the owners of St. Paul's Church. No question relating to the size of the awards remains outstanding between the parties; they are agreed on the amounts to be awarded if the appeals succeed.

16

The cinema comprised a substantial brick-built auditorium with a balcony at the north end and a flat timber and felt covered roof on a steel frame. It was reached from the High Street by a lengthy foyer partly of similar construction and otherwise traditionally stone-built and slated, three storeys in height. The main building of the cinema was set back a considerable distance from the High Street. To the east of the cinema entrance in the High Street there was a passageway known as Macpherson's Close which ran down the length towards the south on the east side of the main building. Immediately to the south of the main building lay the car park to which entry was gained from Canmore Street lying to the south of the property. Macpherson's Close was regularly used by the public as a short cut from Canmore Street to the High Street. Another close known...

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