Do’s and don’ts on your next visit!

The Court of Appeal in Rushbond PLC v The JS Design Partnership LLP [2021] unanimously held that an architect may owe a landlord a duty of care for damages perpetrated by a third party intruder after the architect failed to lock a front door. Other details of the case are as follows:

The architect acting for a potential tenant of an empty cinema site visited the site, unaccompanied by the owner or agent. Prior to the visit, the architect was given keys to a side door and the code for the security alarm, but was not told to lock the door behind him. During the site visit, the architect opened the side door and deactivated the alarm but did not lock the door behind him for the duration of the visit. During the visit, an intruder entered the property without the knowledge of the architect. It was only after the architect left the property that a fire broke out and caused around £6.5million in damage.

The owner filed a negligence claim against the architect for damage to the property. The owner claimed tort liability because there was no contractual relationship between him and the architect.

At first instance, the claim was dismissed by the Technology and Construction Court. The ICC found that while the architects’ failure to lock the door when they visited may have allowed the third party access, it did not provide the means by which that party could declare a disaster and that was not in itself the cause of the fire.

The Court of Appeal then reversed the TCC’s decision and reinstated the claim on the grounds that it was arguable that the architect owed a duty of care to the owner and could therefore be held liable for negligence. The question of whether he did owe the owner a duty of care and has been actually liable would be matters reserved for the full trial.

For those who regularly access and inspect properties, it is important to consider the factors below to avoid a situation similar to Rushbond’s architect:

  1. A duty of care may be owed to the owner, regardless of what he says to do or not to do.

Authorized visitors, like the architect, enter properties as licensees for the purpose of carrying out certain work and as such may owe the owner a duty to take reasonable precautions when performing this task. In the case of Rushbond, it is alleged that the duty included taking reasonable security precautions and taking reasonable care not to act in a manner that would cause damage and loss to the owner.

The Court of Appeal was of the opinion that it was not necessary for the owner to warn the architect of the dangers which should be apparent to any reasonable person, nor that he need specifically ask the architect to lock the door for such an obligation to exist.

  1. It is important to take proportionate safety precautions in the circumstances

Proportionality is calculated relative to the risk that a reasonable person would perceive in the circumstances that make the proportionality issue site-specific.

At Rushbond, the building was tall, dark, and abandoned, so the architect was unaware that the intruder had entered. The building was accessible through many doors which were usually locked and there was a sensor alarm. It has been argued that the security precautions underscore the need to take extra precautions when accessing the property. The building was also located in a busy square in Leeds city center and so it was argued that it was more predictable that an intruder would enter.

  1. Positive actions can lead to negative results

The general rule is that liability is rarely established when a person fails to do something. In Rushbond the circumstances distinguished it from a case of pure omissions so that it is at least arguable that the architect failed in his duty because he performed the actions which enabled the intruder access, i.e. by unlocking the door and deactivating the alarm.

If you would like to discuss any issues relating to this blog, please do not hesitate to contact a member of the Property Dispute Resolution team on 01895 207835 or 01895 207295, or email us at [email protected] .uk

Amanda J. Marsh