For a duty of care to be established in a personal injury claim, foreseeability of harm on its own is not enough: proximity between the parties is also required.

This was reaffirmed by the Court of Appeal in Harrison & Ors v Technical Sign Co Ltd & Ors: Active Commercial Interiors Ltd (Part 20 Respondent) v Cluttons LLP (Part 20 Appellant) in which the court had to determine where responsibilities lay when a sign fell off a building and injured passers-by.

The facts

In 2007, the fascia from the Maison Blanc Patisserie in Putney fell off seriously injuring members of the Harrison family (the claimants). They brought proceedings against Maison Blanc, Technical Sign Co (Technical), Active Commercial Interiors (Active), and Cluttons, surveyors. The various defendants brought contribution and indemnity claims amongst themselves.

All of the defendants/Part 20 parties had had some involvement with the building. Technical had supplied and fitted the shop sign. Active were shop designers and had carried out a remodelling of the shop front in 2005. Maison Blanc was the lessee of the premises. It had asked for a retractable awning to be fitted above the shop windows which entailed work being carried out to the facia supports. Cluttons was the contract administrator which had been appointed by the landlord to supervise refurbishment works carried out on the flats above the shop in 2006.

In March 2007, Maison Blanc's employees experienced difficulties using the awning. It suspected the awning box might have been damaged during the removal of scaffolding following the refurbishment work. Maison Blanc asked Cluttons to look into the problem.

Cluttons duly attended the shop and inspected the awning. Cluttons told Maison Blanc that the awning retracting mechanism had moved slightly and that this would be referred to the contractor. The surveyor subsequently also saw photographs of the alleged damage showing a marked deterioration some weeks before the sign collapsed.

First instance

Judgment was entered by consent against Maison Blanc in 2011 for personal injury compensation claimed by the Harrisons. Active also conceded that it was liable to them. The only issues that remained live when the claim came to trial in 2012 were the contribution claims by Maison Blanc and Active against the surveyors Cluttons who had seen the damage shortly before the accident on its inspection of the awning.

At first instance, the court found that the damage evidenced in the photographs reflected the state of the building on the date of Cluttons' inspection. Accordingly, the surveyor should have spotted the damage and recommended further investigation of the fascia. In failing to do so, he was negligent. The court found the surveyor had owed a duty of care to both the claimants as members of the public at risk of being injured, and to Maison Blanc.

The judge held that a reasonably competent surveyor would have foreseen that a failure on his part to inspect the shop front with reasonable skill and care might cause physical injury to passers-by. Cluttons knew the premises and their close proximity to the road and would have appreciated that a failure to inspect and advise in connection with a defect in the frontage of the premises could result in personal injury being caused to passers-by. The requirements of foreseeability and proximity sufficient to create a duty of care to the public were therefore established and it was fair, just and reasonable to impose such a duty of care on Cluttons.

The judge also held that a reasonable surveyor would have appreciated that if it failed to undertake the inspection of the awning competently, Maison Blanc might suffer economic loss in the form of liability to any injured passers-by. There was sufficient proximity between Cluttons and Maison Blanc as Maison Blanc had asked Cluttons to undertake the investigation and Cluttons had agreed to do so. Maison Blanc had relied on Cluttons and it was reasonable for it to do so. Cluttons had therefore assumed a responsibility to Maison Blanc to carry out the inspection with reasonable skill and care.

Active and Cluttons were both found to have liability to the claimants and were ordered to indemnify Maison Blanc for the loss it had suffered in compensating the claimants. The court apportioned liability between them at 89% Active and 11% Cluttons.

Cluttons appealed, denying they owed a duty of care either to the claimants or to Maison Blanc. Active cross-appealed the apportionment of liability.

The appeal

The Court of Appeal allowed the appeal. It held:

  • The role in which Cluttons had acted was key. They were not instructed as surveyors by Maison Blanc and were not asked to inspect the shop front on Maison Blanc's behalf. Maison Blanc simply "complained" about the shop front which they thought had been damaged by the landlord's workmen in the expectation that the landlord would pay for the repairs. It was for that limited purpose, and in the capacity of landlord's agent, that Cluttons had carried out the inspection.  The relationship between Cluttons and the public had to be determined in that context.
  • Foreseeability of harm on its own was not sufficient to create a relationship of proximity between Cluttons and passers-by. Had Cluttons been asked by Maison Blanc to inspect the awning on their behalf to ensure there was no risk to passers-by, a sufficient degree of proximity would probably have arisen as the very purpose of the inspection would have been to ensure the safety of the public and an assumption of responsibility may well have arisen.

As it was, Cluttons' involvement was directed towards potential liability of their client (the landlords) for damage to the awning, not to the safety of passers-by. There was therefore insufficient proximity between Cluttons and the claimants to give rise to a duty of care. So, no liability directly for Cluttons to the claimants.

Did Cluttons owe a duty of care to Maison Blanc which would enable Maison Blanc to recover a contribution towards or indemnity against, the compensation which it had paid out? The Court of Appeal again held no.

Cluttons had not assumed a responsibility to Maison Blanc to inspect the shop front and report their findings. No relationship of professional adviser and client had arisen between them, even for that limited purpose. Indeed, the parties' relationship was essentially adversarial with Maison Blanc pressing Cluttons (as the landlord's agent) to ensure the issue with the awning was resolved (at the landlord's cost). That was inconsistent with an assumption of responsibility by Cluttons.

As Cluttons did not owe a duty of care to members of the public or to Maison Blanc, Active's contribution claim against them also failed.

Comment

The decision in this case is clearly fact-sensitive and Cluttons' success was entirely due to the nature and purpose of their engagement on behalf of the landlord rather than by Maison Blanc. Even where a professional recognises a potential danger, this case is authority for the proposition that there is no duty to act to prevent foreseeable harm unless there is a relationship of proximity between the professional and the party at risk of injury.

The judgment says, in effect, that in a civil claim, foreseeability of risk is not sufficient on its own to find liability.  There has to be proximity and a duty of care must have arisen. If there was no proximity - and there wasn't here as Cluttons weren't instructed by Maison Blanc - there would be no duty imposed. The judge at first instance got it wrong as he found foreseeability to be enough. It was all to do with the instructions Cluttons received and on whose behalf they were working.

Cluttons' role and scope of instructions had nothing to do with the safety of passers-by. It was simply to do with whether the shop front had sustained damage for which its client might be responsible. The specific nature of the instruction they were to carry out also meant that they avoided having to contribute to Maison Blanc's liability.

This case brings home the importance of professionals in construction or any other area of expertise, paying close attention to the basis on which they are instructed and are acting as that will determine whether, and to whom, they owe duties of care. For that reason, they should ensure that their instructions are clearly set out - preferably in writing.

A more difficult question to answer is whether or not this case may be of assistance or relevance in the context of criminal proceedings. No one was charged in this matter, so the question is hypothetical, but had a charge under section 3 of the Health and Safety at Work etc Act 1974 been brought, would Cluttons have escaped liability?

Under section 3, it is the duty of every employer and every self-employed person, "to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health and safety."

The HSE tend to argue for a wide interpretation of this section and a Defendant may be guilty of an offence whether or not his actions or omissions have in fact caused harm because the offence is related to the risk and not the harm. Cluttons didn't create the risk but it is possible that their failure to take steps to prevent harm having seen the damaged area could be called into question. Although not liable on the civil claim, liability might arise on a criminal charge on the same facts.