Do’s and Don’ts for your next site visit!

The Court of Appeal in Rushbond PLC v The JS Design Partnership LLP [2021] unanimously held that an architect could owe a property owner a duty of care for damage perpetrated by a third-party intruder after the architect failed to lock an entrance door.  Further details of the case are as follows:

The architect who was acting for a potential tenant of an empty cinema site was visiting the site, unaccompanied by the property owner or agent. Prior to visiting, the architect was given keys to a side door and the code to the security alarm but wasn’t told to lock the door behind him. When visiting the site, the architect opened the side door and disabled the alarm but did not lock the door behind him for the duration of the visit. During the visit, an intruder gained access to the property without the architect knowing.  It was only after the architect had left the property that a fire had started and caused around £6.5m worth of damage.

The property owner issued a claim in negligence against the architect for the damage caused to the property. The property owner was relying on tortious liability as there was no contractual relationship between them and the architect.

At first instance, the claim was struck out in the Technology and Construction Court. The TCC found that whilst the architects failure to lock the door during his visit may have allowed the third party to gain access it did not provide the means by which that party could state a dire and it was not in itself causative of the fire.

The Court of Appeal then reversed the TCC decision and reinstated the claim on the basis that it was arguable that the architect owed the property owner a duty of care and so could be liable in negligence. The question of whether he did owe the property owner a duty of care and was actually liable would be questions reserved for the full trial.

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

1. A duty of care may be owed to the property owner irrespective of what they say to do or not to do.

Permitted visitors, alike to the architect, enter properties as licensees for the purpose of carrying out a certain job and as such, they may owe the property owner a duty to take reasonable care when carrying out that task. In the case of Rushbond, it is argued that the duty included taking reasonable security precautions and to take reasonable care not to act in a way to cause damage and loss to the property owner.

The Court of Appeals view was that it was not necessary for the property owner to warn the architect of dangers which should be apparent to any reasonable person, nor did they need to specifically request that the architect lock the door for such a duty to exist.

2. It is important to take proportionate security precautions in the circumstances

Proportionality is calculated in relation to the risk that a reasonable person would perceive in the circumstances which makes the question of proportionality, site specific.

In Rushbond, the building was large, dark and derelict so the architect wasn’t aware the intruder had gained entry. The building was accessible via numerous doors which were usually locked and there was a sensor alarm. It was argued that the security precautions point to the need for extra care to be taken in accessing the property. The building was also located in a busy square in Leeds city centre and it was therefore argued that it was more foreseeable that an intruder would enter.

3. Positive actions can lead to negative results

The general rule is that liability is rarely established where someone omits to do something. In Rushbond, the circumstances distinguished it from a pure omissions case so that it is at least arguable that the architect breached his duty because he carried out the actions which allowed the intruder to gain access, namely by unlocking the door and deactivating the alarm.

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If you would like to discuss any issue relating to this blog, please do not hesitate to contact a member of the Real Estate Dispute Resolution Team on 01895 201759 or contact us via the enquiry form at the top of our Property Disputes page.