Duty of care: Just desserts?

The case of Harrison and others vs Technical Sign Company Ltd and others considered where responsibility lies, and how much responsibility to apportion, when multiple parties have contributed to a flawed building project. The judgment, delivered at the Court of Appeal on 4 December, highlights some of the complexities surrounding duty of care for professionals.

In 2007, the sign from the Maison Blanc Patisserie in Putney, south-west London, fell down, seriously injuring members of the Harrison family. Judgment was entered against Maison Blanc for personal injury damages for the Harrisons.

Maison Blanc commenced contribution proceedings against Technical Sign Company, which had supplied and fitted the shop sign, and Active Commercial Interiors, which had carried out a remodelling of the shopfront in 2005. Maison Blanc also sued surveyor Cluttons, which had inspected the awning over the shop window at the request of Maison Blanc in March 2007.

At first instance the court decided that Active and Cluttons were both liable to the Harrisons for their injuries and had to indemnify Maison Blanc. Cluttons appealed, denying they owed a duty of care either to the Harrisons or to Maison Blanc. Active cross-appealed on the basis that the judge’s apportionment of liability was too favourable to Cluttons (89% Active and 11% Cluttons). Cluttons’ appeal was successful, but Active’s was not.

With no proximity there can be no duty of care and, hence, no negligence

The appeal decision raises an interesting yet fundamental question in the tort of negligence - how far does the duty of care extend? Fortunately for Cluttons, on this occasion, not that far.

The story starts in 2005 when the shopfront was remodelled. Maison Blanc was the lessee of the shop and wanted to install a retractable awning. However, as a result of the works, the fascia was left with little, if any, support.

In 2006 the building owner refurbished flats above the shop. Cluttons was engaged as contract administrator. In March 2007, a few months after scaffolding was removed, Maison Blanc’s employees had difficulties using the awning. Maison Blanc asked Cluttons to have a look.

The surveyor duly inspected the alleged damage and concluded that the awning-retracting mechanism had moved slightly. He also saw photographs of the alleged damage some weeks before the sign collapsed showing a marked deterioration but did not inform Maison Blanc.

The court found that the damage shown in the photographs reflected the state of the building on the date of Cluttons’ inspection. Accordingly, the court at first instance found the surveyor should have spotted the damage and recommended further investigation of the fascia. In failing to do so, he was negligent and Maison Blanc succeeded in its claim against Cluttons.

The question for the Court of Appeal was whether Cluttons owed a duty of care to the Harrisons. The court said it did not. In short, there was not a sufficient degree of proximity between Cluttons and members of the public to justify imposing a duty of care on Cluttons. With no proximity there can be no duty of care and, hence, no negligence. The Court of Appeal also emphasised that foreseeability of harm alone, was insufficient to create a relationship of proximity.

The limited circumstances in which Cluttons had been asked to look at the awning were key. Cluttons was not instructed, as a surveyor, by Maison Blanc. Neither was it asked to inspect the shopfront on Maison Blanc’s behalf - Maison Blanc simply “complained” about the shopfront in the expectation, the court observed, that the landlord would pay for the repairs. This could be contrasted with the hypothetical scenario where Cluttons had been asked by Maison Blanc to inspect the awning on its behalf to ensure there was no risk to passers-by. Essentially, Cluttons’ involvement was directed towards potential liability of its client (the building owners) for damage to the awning, not to the safety of passers-by.

Did Cluttons owe a duty of care to Maison Blanc? Again, no. Cluttons had not undertaken “a responsibility to Maison Blanc to inspect the shopfront and report their findings and in doing so to act with reasonable skill and care”. Indeed, the parties’ relationship was essentially adversarial.

Since Cluttons did not owe a duty of care to members of the public or to Maison Blanc, Active’s contribution claim failed.

The appeal decision is clearly fact-sensitive and turned on Cluttons’ involvement with the building and the refurbishment works. The role and scope of the surveyor’s instructions were crucial determinants. All building professionals should be clear as to the basis upon which they are acting and who they are acting for. These questions can determine whether, and to whom, they owe duties of care when things go wrong.

Ashley Pigott is a partner in Wragge & Co’s construction and engineering team