Home › Practice Areas › PI and Civil Litigation Law › News & Comment › Gillian Harrison and Others v Technical Sign Co Ltd and Others: Active Commercial Interiors Ltd v Cluttons LLP (Part 20 Appellants)  EWCA Civ 1569; (2014) APIL 023
Negligence - Personal Injury - Duty of Care - Agents - Foreseeability - Proximity
The surveyors appealed the decision that they were to make contributions to the shop owner, who was liable for personal injuries to passers-by who had been injured when a shop sign fell. The surveyors did not have a duty of care to the passers-by or the owner of the shop, as the inspection was carried out as agents acting on behalf of the landlord.
4 December 2013
Court of Appeal
Moore - Bick LJ, Patten LJ and McFarlane LJ
On 23 June 2007, the fascia of a shop fell onto the pavement causing serious injuries to the claimants, who were passing by. The claimants brought proceedings against the shop owner and various other parties, who they alleged owed them a duty of care. There were four defendants in total, including the first defendant, Technical Sign Company Ltd (‘Technical') who had supplied and fitted the shop. All the defendants brought Part 20 claims amongst themselves seeking indemnities or contributions in respect of any liability they may have towards the claimants. Maison Blanc Ltd (‘Maison'), the second defendant and owners of the shop and Active Commercial Interiors Ltd (‘Active'), the third defendant who had carried out the remodelling of the shop both agreed they were liable for the claimants accident, though claims against the other defendants were stayed generally. The Part 20 claims were compromised apart from claims by Maison and Active against, Cluttons, the surveyors and the fourth defendants.
It was held at first instance, that Active and Cluttons were both to meet the claimants claims and to indemnify Maison in respect of the financial losses suffered in compensating the claimants. Liability was apportioned between them: 89% to Active and 11% to Cluttons. Cluttons appealed denying that they owed a duty of care to Maison or the claimants. Active cross appealed alleging the apportionment was too favourable to Cluttons. On appeal, it was accepted that having regard to the threefold test approved in Caparo Industries Plc v Dickman ( 2 AC 605), Cluttons had not owed a duty to either Maison or the claimants. Their obligations and relationship with Maison was such that it did not make them responsible. Active's cross appeal failed.
On appeal, it was held that whether the surveyors owed a duty of care to members of the public cannot be answered without taking into account the circumstances in which they came to be involved. They were not asked to advise the shop owner or inspect the shop front of its behalf. The surveyors were acting on behalf of the landlord following a complaint made by the shop owner. The judge had erred in placing too much emphasis on foreseeability of harm, which is not enough on its own. Caparo Industries Plc v Dickman  2 AC 605 cited. Perrett v Collins  PNLR 77 also cited to confirm that when physical injury is concerned, the existence of a duty of care requires a relationship of proximity or ‘neighbourhood'. If the shop owner had asked the surveyors to inspect the awnings on its behalf to ensure that it did not pose a danger to passers-by, a sufficient degree of proximity would probably have existed, because the very purpose of the inspection would have been to ensure the safety of the public. As it was however, the surveyors involved had nothing to do with the safety of passers-by. The evidence showed that relationship between the shop owner and the surveyors was adversarial in nature and there was nothing to suggest the surveyors had been asked to advise the shop owners. The judge was wrong to hold that the surveyors owed a duty of care to the shop owners. The surveyors appeal was allowed.
This is an interesting case which reiterates the courts duty to examine the specific circumstances in every case to establish whether a party will owe a duty of care to a third party. It also highlights that it is not sufficient to establish proximity and foreseeability of harm, but rather look at the nature of the relationship between the parties.
Kim Pryce, Anthony Gold