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Surveyors' duty of care: Proximity

Harrison & Ors v Technical Sign Co Ltd & Ors
4.12.13
Court of Appeal

The Court of Appeal confirmed that foreseeability of harm is, in itself, insufficient to establish the necessary degree of proximity between a professional and the injured party, so as to give rise to a duty of care.  Even where the damage is of a physical nature (rather than purely financial), the “existence of a duty of care requires a relationship of proximity or “neighbourhood”. 

Facts

In 2007 the Claimant pedestrians suffered serious injury when the concrete fascia of a patisserie shop in Putney fell off as they were passing by. The Claimants sued various entities, including the proprietor of the shop (which comprised both the ground floor and basement), Maison Blanc Ltd (“Maison Blanc”); Technical Sign Company Ltd, who had supplied and fitted the shop sign in 2005; Active Commercial Interiors Ltd (“Active”), who had carried out a remodelling of the shop front and fascia in 2005 and Cluttons LLP (“Cluttons”), a well-known firm of surveyors.

Cluttons’ involvement in the case had occurred when it acted as contract administrator for the landlord in carrying out works to the upper floors of the premises. Maison Blanc asked that Cluttons inspect the awning unit to the front of the shop, as Maison Blanc suspected that it had been damaged by the recent removal of scaffolding by the landlord’s workmen in carrying out the works to the upper floors of the premises. Cluttons attended at the premises in March 2007 and subsequently emailed Maison Blanc confirming that they believed that the retracting mechanism of the awning had moved slightly.

The claim against Cluttons was premised on the allegation that they failed to see or appreciate that the entire fascia of the front of the shop was in a dangerous condition and that they failed to advise that urgent steps be taken by Maison Blanc to investigate further.

The Defendants made various Part 20 claims amongst themselves. Maison Blanc submitted to judgment in favour of the Claimants and Active also conceded liability. By the time the case came to trial all of the Part 20 claims had been settled aside from the claims by Maison Blanc and Active against Cluttons.

Trial at first instance findings

At first instance the trial Judge held that Active and Cluttons were both liable to the Claimants for the injuries suffered and were therefore liable to indemnify Maison Blanc. Accordingly, it was held that Active was entitled to a contribution from Cluttons on the basis that they were both liable to the Claimants and Maison Blanc in respect of the same damage. Liability was apportioned 89% to Active and 11% to Cluttons.

Cluttons appealed against the decision arguing that they did not owe a duty of care to the Claimants or Maison Blanc. Active resisted the appeal and cross-appealed challenging the apportionment of liability.

Court of Appeal findings

The Court of Appeal allowed Cluttons’ appeal and held that Cluttons did not owe the Claimants or Maison Blanc a duty of care.

The Court focussed on the circumstances in which Cluttons came to be involved in the case. The Court considered that Cluttons were acting as the landlord’s agents in the refurbishment of the upper floors and they had not been asked to advise Maison Blanc or to inspect the shop front on its behalf. Specifically, the Court considered that the foreseeability of harm was not sufficient, in itself, to create a relationship of proximity. The Court also commented that had Maison Blanc asked Cluttons to inspect the awning, on its behalf, to ensure that it did not pose a danger to pedestrians, then a sufficient degree of proximity would probably have existed. However, in circumstances where the purpose of the inspection was to assess whether Cluttons’ client (the landlord) might be liable for damage sustained to the awning, there was insufficient proximity to give rise to a duty of care to the Claimants.

The Court also considered the adversarial nature of the email correspondence between Cluttons and Maison Blanc, which gave rise to Cluttons’ inspection of the front of the premises; Maison Blanc believed that the landlord’s workmen had damaged the awning unit and requested that Cluttons inspect the unit in anticipation of the landlord paying for any necessary repairs. Accordingly, it was clear that Cluttons were acting on behalf of the landlord and not Maison Blanc. Following the inspection, the nature of the relationship continued to be adversarial with Maison Blanc pressing Cluttons, in their capacity as the landlord’s agent, to remedy the problem with the awning. Accordingly, the Court held that the nature of the relationship was inconsistent with any argument that there was an assumption of responsibility, such as to give rise to a duty of care to Maison Blanc.

Comment

The Court of Appeal’s decision confirms that foreseeability of harm is, in itself, insufficient to establish the necessary degree of proximity between a professional and the injured party, so as to give rise to a duty of care. It also confirms that even where the damage is of a physical nature (rather than purely financial), the “existence of a duty of care requires a relationship of proximity or “neighbourhood”.

Whilst the decision reinforces the principles developed in Caparo Industries Plc v Dickman [1990] 2 AC 605, it also provides a useful reminder of the circumstances in which a professional will owe a duty of care to a party who is not the professional’s client, as well as the limits which the courts are prepared to place on the professional’s potential liability to such parties. Specifically, where the parties are in an adversarial relationship, it seems that the courts will be reluctant to find that the professional owed a duty of care to the ‘opposing’ party or a member of the public.

Contact

For further information please contact Alexia Drew,Senior Solicitor, DWF Fishburns on 0117 301 7395 or Simon Mason, Partner, DWF Fishburns on 0117 301 7392

By Alexia Drew, Simon Mason

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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