SMITH v LITTLEWOODS ORGANISATION LTD

Foreseeability, and the duty of care for the criminal acts of third parties, seems somewhat overburdening; and so, in this matter the appellants found themselves central to an argument that required brevity in order to restore the flow of justice.

In 1976, the respondents acquired a derelict cinema as part of their national retail expansion programme, and while awaiting the refurbishment process to begin, the site was occasionally occupied by subcontractors and their employees when fully stripping the building bare ahead of the main construction phase.

Over a period of weeks, the site was also accessed by local youths who, on two occasions, started small fires, before having them extinguished by members of the nearby parish church.

Unfortunately, instead of notifying the police or the appellants, those acts went unreported until a third fire was allowed to get out of control, before causing significant damage to a neighbouring property and the church.

Having commenced litigation against the respondents, the now appellants contended that failure to provide adequate security to the site was a breach of duty owed to prevent both access by the youths, and the damage caused to their properties as a result of the fire.

In the first instance, the court agreed that insufficient safety measures on the part of the respondents had granted reasonable foreseeability that the vandalism might occur; and so, awarded accordingly.

Having been heard in the First Division of the Inner House of the Court of Session, it was agreed by the appellants that the respondents had no knowledge of the first two fires, therefore the decision was reversed.

Presented to the House of Lords, the appellants continued to claim for damages, while the House took time to examine the nature of negligence and duty of care for strangers to property and ensuing criminal acts.

In Dorset Yacht Co Ltd v Home Office, it was remarked by Reid LJ that:

“[W]here 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.”

Dorset Yacht Co Ltd v Home Office

While in Bourhill v Young, it was argued by MacMillan LJ that:

“The duty to take care is the duty to avoid doing or omitting to do anything the doing or omitting to do which may have as its reasonable and probable consequence injury to others, and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed.”

Bourhill v Young

However, it was well illustrated in academic text that:

“[T]he law might acknowledge a general principle that, whenever the harmful conduct of another is reasonably foreseeable, it is our duty to take precautions against it…but, up to now, no legal system has gone so far as this….”

This position was also supported by Sumner LJ in Weld-Blundell v Stephens, who explained that:

“In general…even though A is in fault, he is not responsible for injury to C which B, a stranger to him, deliberately chooses to do.”

Weld-Blundell v Stephens

By this it was construed by the House that unless there are exceptional circumstances where the property owner (who by virtue of his inaction) created a circumstance in which damage to another property fell under his remit, perhaps by some unique relationship, and that the foreseeability of such damage was little short of certain, there could be no justification for holding that owner to account;

And so, it was that for this reason, the appeal was uniformly dismissed, while the House reminded the parties that:

“[L]iability in negligence for harm caused by the deliberate wrongdoing of others cannot be founded simply upon foreseeability that the pursuer will suffer loss or damage by reason of such wrongdoing. There is no such general principle.”