Maloco v. Littlewoods [1987] UKHL 18

UKHL

Maloco v. Littlewoods

[1987] UKHL 18 · 1987-02-05

At advising, on 19th November 1985, their Lordships allowed the reclaiming motions and dismissed each action.

LORD PRESIDENT (Lord Emslie).—In 1976 the defenders bought the Regal Cinema, on the south side of High Street, Dunfermline, from Caledonian Associated Cinemas Ltd. It was within an area of the centre of the town which was about to be redeveloped. The last showing of a film in the cinema took place on 29th May 1976, and it was the defenders' intention to demolish it very soon and to build a supermarket on the site. The defenders officially obtained entry to the premises on 31st May 1976, but it appears that in the course of the next fortnight the cinema owners, who retained the keys and control of the premises until 14th June 1976, employed contractors to remove the seats from the auditorium and all other fittings and equipment which were worth taking away, and which were of no interest to the defenders. Before these contractors had finished their task, contractors employed by the defenders arrived at the premises to make certain site investigations, and to do some preliminary work on foundations. These latter contractors were present and working for about three weeks, the first two of which were spent in the area of the cinema car park at the rear. Thereafter they spent about four days working inside the premises after the cinema owners' contractors had departed. From about the end of the third week in June 1976 the former cinema remained empty and unattended by any persons employed by or in the service of the defenders.

As can be seen from the map, no. 149 of process, a narrow lane called Macpherson's Close ran down the east side of the cinema, separating it from the neighbouring properties to the east. A similar narrow lane known as the West Close ran down the west side of the cinema, separating it from the neighbouring properties to the west. On the opposite side of this lane was the property of Mr Maloco, consisting of a cafe and a billiard hall. To the south west of the cinema and beyond certain properties lying immediately to the west of the West Close lay St. Paul's Church, vested in its minister, its session clerk and its Deacon's Court. The church—a Victorian gothic building—had a small wooden turret. The public entrance to the former cinema was on its High Street frontage. A number of exit or fire doors with locking bars designed to be opened only from the inside, were set in the walls of the cinema facing the two lanes.

In the evening of Monday, 5th July 1976, the former cinema was engulfed by a fire which destroyed it. The fire spread and damaged the cafe and billiard hall on the opposite side of the West Close. Sparks from the cinema fire entered the wooden turret of St. Paul's Church and a ventilator shaft inside it. The result was that the church was consumed by fire.

These events gave rise to the two actions with which we are concerned. Each is an action of damages, and in each the basis in fact is that for some time before 5th July the security of the premises had been overcome by children, including vandals, who increasingly treated the interior of the place as a playground, and that the fire which engulfed the cinema was started at the north east corner by the balcony by young vandals who had gained unauthorised entry to the premises. The ground of action in each case is the same. The averments of importance are these [as taken from the closed record in the Smith and Others case]:

"It was their duty as the owners and occupiers of said premises to take reasonable care for the safety of premises adjoining. They knew or ought to have known that a disused cinema would be a ready target for vandals. They knew or ought to have known that after 20th May 1976 their said cinema was in fact the subject of extensive vandalism. Reference is made [to] art. 3 of the condescendence. They further

knew or ought to have known that if they did not take steps to prevent the entry of such vandals they would cause damage not only to their own property whether by fire or otherwise but further that such fire might spread and cause damage to adjoining properties. In these circumstances it was their duty to take reasonable care to keep and maintain the said premises lockfast. It was their duty to employ a caretaker to watch over the said premises and to prevent the entry of vandals. It was their duty to cause regular inspection to be made of the said premises and to lock or board up any doors or windows found to be opened or smashed. In each and all of said duties the defenders failed and by their failure caused the pursuers' loss and damage."

The defenders denied liability and, in particular, any knowledge of the alleged repeated entry of young vandals before 5th July 1976, and served a third-party notice on the chief constable who need not be further mentioned since he is no longer in the process.

Both actions went to proof together and the Lord Ordinary held that the pursuers had succeeded in establishing that the loss and damage suffered by them had been caused by fault on the part of the defenders. He then proceeded to award an agreed sum of damages to Mr Maloco, and assessed and awarded damages to the pursuers in the second action. In this reclaiming motion the defenders challenge the Lord Ordinary's decision on liability, and criticise as excessive his assessment of damages awarded for the destruction of the church. The pursuers, in the action relating to the church, have taken the opportunity to argue that the Lord Ordinary's award in their favour is flawed by a number of errors and is inadequate.

In the course of the reclaiming motions it became clear that the Lord Ordinary's conclusions about the history of the former cinema between 31st May 1976 and 5th July 1976 could not seriously be disputed. In his opinion he has given us a fairly comprehensive analysis of the evidence dealing with this important matter, and a clear account of the story which emerged from that evidence. I refer to it for its terms and, in these circumstances, all that I require to do is to give a very brief summary of the salient features of the factual background against which the disputed issue of liability falls to be examined in this reclaiming motion:(i) it was established that children began to overcome the security of the cinema building by breaking into it in one way or another in the period of about four days when the defenders' contractors were doing preliminary foundation work inside the premises, during, or towards the end of, the third week in June 1976. Although these contractors locked and secured the premises when they finished work each night they discovered on their return in the mornings clear signs that the premises had been forcibly entered. Some fire doors had been forced open from inside and the locking bars had been broken. The contractors had then to secure the doors which had been so affected by tying them with rope to the stage. When they finished their work they left the premises as secure as they could make them;

(ii) thereafter, when there was no physical presence on or on behalf of the defenders, the security of the premises was again overcome by children and young persons, and children and young persons resorted to the premises with increasing regularity for play, horseplay and the pleasure of making a mess and breaking whatever they could find to break. As the Lord Ordinary put it, it was amply established that by the first few days of July 1976 anyone with half an eye who made use of Macpherson's Close could have seen that the main building of the cinema was no longer lockfast and was being regularly entered by unauthorised

persons. Rubbish, including paper and debris, was steadily accumulating inside and outside. One witness, indeed, speaking of the period of about 14 days before the fire, said that it was common knowledge that the old cinema building had become an open playground. The surprising thing is that the police were wholly unaware of what was going on. There is no evidence that anyone reported what was going on to any police officers and it is perfectly clear that no one brought it to the notice of the defenders who simply did not know that the old cinema had been forcibly entered, and that after the third week of June 1976 it had ceased to be lockfast, and had become an open playground for school children bent on play and mischief; (iii) there was evidence that on one occasion Mr Baird, the defenders' contractor, had seen signs of an attempt having been made to set fire to lengths of old film (which was not combustible) in Macpherson's Close, and that on another, and probably later, occasion, Mr Scott, the beadle of St. Paul's Church, went into the cinema auditorium by an open fire door and saw signs of someone having tried to light a fire inside. A piece of old carpeting was smouldering and he stamped it out.

As to the conflagration which took place on 5th July the Lord Ordinary was able to conclude for the reasons which he gives that the fire had been started deliberately and probably by young children or teenagers. He records that counsel for the defenders had conceded that the fire which took hold of the entire cinema had probably been started deliberately by someone.

In this state of the evidence the main and hotly disputed question at the proof was whether the defenders owed to the pursuers the particular duties averred. The pursuers' case essentially was that because of the risk of damage to their premises if the cinema were to become the seat of a major fire, the defenders, who were admittedly under the general duty to take reasonable care for the safety of the pursuers' premises, ought in the performance of their general duty to have employed a caretaker to prevent the entry of young vandals and to inspect the premises regularly and to secure any doors or windows found to be opened or smashed. The Lord Ordinary's task was complicated by attempts by the defenders to persuade him that the existence of such particular duties towards the pursuers depended on their being a special relationship between them and the third parties who intruded without authority and set the cinema alight and that the act of the fire raiser was a novus actus interveniens . Wisely he rejected these attempts which are not soundly based in principle and which have not been renewed before us, and asked himself the question: In all the circumstances should the defenders reasonably have foreseen that if they took no steps to watch over the security of their premises after their contractors had finished their task, it was likely that children, including those prone to vandalism, would break into the premises and resort to them with increasing frequency and, further, that it was "very likely" that one or more of such youthful intruders would "start a fire"? For the reasons which he gives in his opinion the Lord Ordinary found no difficulty in holding that it was very likely indeed, because of the nature and situation of the building and the seclusion which it offered to anyone who got inside, that children and young persons would make efforts to enter it in order to explore it and look for souvenirs, and that, accordingly, the regular invasions by children and young persons which undoubtedly occurred ought reasonably to have been foreseen by the defenders. The Lord Ordinary then proceeded to consider whether it was also "very likely" that, having broken into the cinema or having

entered it once all obstacles to entry had been broken down, the intruders or some of them would "start a fire". This is what he said:

"It is on this aspect of the case that I have had the greatest difficulty. Putting myself in the position of a jury, I have had to ask myself, bearing in mind that the defenders had no control over the children and teenagers, was it reasonably foreseeable by the defenders that, by failing to keep the cinema lockfast and to inspect it regularly during the last half of June and the first few days of July 1976, children and young persons would not only enter it, but start a fire? It is with some hesitation that I have reached the conclusion that that question falls to be answered in the affirmative. In the absence of any evidence about the lighting of a fire, it would have been difficult to say that it was ‘very likely’ that children and young persons breaking into these premises would start a fire, but in the present instance there is evidence that on two occasions shortly before 5th July 1976 witnesses saw signs of someone having tried to start a fire. One of these was in the stalls area of the auditorium and the other in Macpherson's Close. These pieces of evidence plus the evidence that there was debris and old films and pieces of paper lying about in the auditorium persuade me that the defenders ought reasonably to have foreseen, in the sense to which I have referred, that children and young persons would light a fire in the premises once having entered them. I accept that there is a very narrow dividing line in the circumstances of this case between bare foreseeability, and reasonable foreseeability, but having applied my mind to that problem, I have reached the conclusion that the lighting of a fire in the premises by children or teenagers was in the circumstances reasonably foreseeable."

Thereafter the Lord Ordinary found that the defenders were in breach of a duty to the pursuers to watch over their premises and prevent the intrusion of young vandals, and that the damage suffered by the pursuers' properties was, in the circumstances, a natural and probable consequence of breach of that duty.

For the defenders the first proposition was that the Lord Ordinary's somewhat hesitant decision that the defenders owed to the pursuers the duty to watch over their premises and prevent the entry of young vandals, is obviously flawed for two reasons. In the first place it is evident that he would not have held that it was reasonably foreseeable that intruding children would light a fire in the premises if he had not taken account of the two instances which I have already described, one inside and one outside, of attempts having been made to light a fire. These incidents were quite unknown to the defenders. In the second place, said the counsel for the defenders, it was not enough for the Lord Ordinary to ask himself merely whether it was likely, or, to use his own words, "very likely" that young intruders would light a fire. The real question is whether it was likely or "very likely" that they would deliberately set fire to the building itself, or light such a fire as would be likely to set the whole building ablaze. I have to say at once that counsel for the pursuers were not prepared to support the Lord Ordinary's reasoning on this aspect of the case. They recognised correctly that his decision on the reasonable foreseeability of the starting of a fire by young intruders depended upon taking into account information which was not available to the defenders, and they were, in any event, not content with the Lord Ordinary's approach. He was wrong, they said, to ask himself whether the starting of a fire was "very likely". All that was required was that such an event should be seen as one which was likely to occur. The result of all this is that the hearing before us was conducted upon the basis that the main question on liability is at large for

this court, i.e. whether the defenders owed to the pursuers the particular duties upon which the pursuers' case depend.

It was admitted by the defenders, correctly, that as owners of the cinema they had the general duty to take reasonable care for the safety of premises in the neighbourhood. For the purposes of these actions it may be taken that the safety of premises in the neighbourhood, including the premises belonging to the pursuers, was only likely to be endangered in the event of a major fire breaking out and taking hold of the cinema. The major fire which engulfed the cinema on 5th July 1976 and which caused damage to the premises of the pursuers was found by the Lord Ordinary to have been started deliberately and parties were agreed that this was a case of wilful fireraising by some intruder or intruders. The first and main question which is at large for us is whether the defenders in the performance of their general duty towards the pursuers were obliged to carry out the particular duties averred by the pursuers, the performance of which, it is contended, would probably have prevented the outbreak of the major fire which led to the damage of which the pursuers complain. The answer to that question is to be found, in my opinion, by the application to the facts and circumstances of this case of well-established general principle. The principle is well-known and, I am happy to say, not in dispute, and I find it quite unnecessary therefore to embark upon yet another excursion into the authorities in Scotland since Donoghue v. Stevenson 1932 S.C. (H.L.) 3 in order to demonstrate what it is. Before us the parties were in broad agreement, and in my opinion the agreement was well-founded in principle, that if the pursuers are to persuade us that the defenders ought, in the interests of the safety of the pursuers' premises, to have taken steps to keep an eye upon the unoccupied cinema and to keep it secure in order to keep out young vandals or to reduce the risk of their intrusion, they must satisfy us that it was reasonably foreseeable, if no steps were taken to watch over the cinema, and maintain its security, after the defenders' contractors had finished their work, that certain events were likely to take place. In particular we would require to be satisfied that it was reasonably to be foreseen not only that children and teenagers, including some bent on vandalism, would be likely to break in and resort to the empty building in increasing numbers, causing internal damage thereto, but also that it was likely that one or more of such intruding youngsters would set the cinema on fire. The Lord Ordinary asked himself whether it was reasonably foreseeable that if nothing was done to discourage or prevent the intrusion of young vandals it was "very likely" that they would set fire to the cinema in one way or another. Although the words "very likely" were used by their Lordships of the Second Division in their discussion of the relevant test in the recent case of Squires v. Perth and Kinross D.C. 1985 SC 297 , I venture to think that the true test merely requires that it was reasonably foreseeable that the event which caused the damage was, in the absence of precautions, "likely" to occur. The words "very likely" were first used by Lord Reid in a passage in his speech in Dorset Yacht Co. Ltd. v. Home Office

[1970] AC 1004

but when the passage is read as a whole I do not consider that his Lordship intended to make the test a more stringent one than it had previously been understood to be, and that he recognised that the critical question was that of likelihood. As Lord Thankerton said in Muir v. Glasgow Corporation 1943 SC (HL) 3 at p. 8 "[I]t has long been held in Scotland that all that a person can be held bound to foresee are the reasonable and probable consequences of the failure

to take care, judged by the standard of the ordinary reasonable man." In deciding whether a particular duty of care is owed to a particular pursuer the same test must be applied in the context of the particular facts and circumstances of each case and there is, in my opinion, no warrant in principle for applying a different or more stringent test in any particular case, even in a case such as this in which the damage suffered by the pursuers was caused by wilful fireraising by unauthorised intruders in the defenders' cinema. I have only to add that the question of what the defenders ought to be held bound reasonably to have foreseen is essentially a jury question and it is the duty of the court to approach it as if it were a jury [see, for example, Muir v. Glasgow Corporation and Harvey v. Singer Manufacturing Co. Ltd. 1960 SC 155 ].

I come now to consider how the first and main question in the case falls to be answered. The Lord Ordinary has held that it was very likely indeed, if the defenders did nothing to discourage them, that children and young persons would make efforts to do what they succeeded in doing, namely, break into the cinema and enter it in order to explore it and look for souvenirs. In my opinion he was well-entitled upon the evidence to hold that the defenders ought reasonably to have foreseen as likely the intrusions which occurred. The contrary was not seriously suggested by the defenders. It is plain that the empty cinema would be and was a magnet for children because of what it was and because of the advantages which the location of the cinema conferred, i.e. the opportunity to play, make a mess, and smash what they could find to smash in relative seclusion. So far so good from the pursuers' point of view, but if it is to be held that the defenders ought to have taken the precautions on which the pursuers' case depend, in the interest of the safety of the pursuers' premises, this court must be satisfied further that it was reasonably foreseeable that one or more of these intruders would be likely to set the cinema ablaze. In other words: was it a reasonable and probable consequence of failure to take any precautions to keep the intruding children out of the cinema that a major fire therein would occur?

For the pursuers it was strenuously maintained that all that the defenders were bound to foresee was that young intruding vandals would be likely to light a fire within the premises because a fire once lit, they said, behaves in an unpredictable way and can readily get out of control. From small fires do large fires grow, said counsel. The building was not fireproof, although its construction involved no special risk of fire taking hold, and even if there is no intention upon the part of those who light one to burn down the building, this is a consequence within the ambit of reasonable foreseeability. In the submission of the pursuers this court should hold, bringing to bear upon the matter, as a jury would, its experience of the facts of life, that in the circumstances of this case it was likely that young vandals would be likely to light a fire of some kind inside or to try to set alight something they could not otherwise destroy, and that if they did so the risk of a major fire in the cinema was an obvious one. It should be recognised by the court that vandals cannot resist the temptation to cause wanton damage, and that the kinds of damage which vandals are likely to do will include damage by fire. Materials for making a fire or even a bonfire were, upon the evidence, readily available within the cinema. These materials included paper, pieces of old curtain material and carpeting, wood, old boxes and a number of broken and abandoned cinema seats, and in any event, vandals intent on starting a fire to burn down the building, or with some lesser objective in view, could easily bring in with them

combustible material. For the defenders on the other hand the contention was that the only relevant risk in a question with the pursuers was that the intruding vandals would deliberately set fire to the building or set a fire of such a size in such a place within the building as would be likely to set it ablaze. Such an event was no doubt a possible event but it was not one which was reasonably to be foreseen as likely to happen because children including vandals had been allowed to enter and play in the cinema at will.

Let me assume, for the moment, that the first and main question in the case may be answered in the pursuers' favour if we were to be satisfied merely that it was reasonably foreseeable that one or more of the young intruders would be likely to light a fire of some kind and size within the building. Approaching the matter as a jury would I am quite unable to hold upon the evidence in this case (and I ignore altogether the evidence about the two attempts to start a fire of which the defenders were wholly unaware) that the starting of a fire by intruding children was an event which was reasonably to be foreseen as likely to occur or, indeed, that if a fire which was not designed to take hold of the building was started, it was likely to do so. There was nothing about the building, so far as we know from the evidence, to suggest that it could easily be set alight. Even if I am wrong about the likelihood of a fire being started by children inside the building, however, I am entirely satisfied that what we require to ask ourselves is a very different question, namely, whether it was reasonably to be foreseen by the defenders that if they took no steps to discourage widespread use of the cinema by youngsters including vandals, one or more of them, or some other intruder, would be likely deliberately to set fire to the building, which is precisely what happened on 5th July 1976, or deliberately to set such a fire in such a place as would be likely to engulf the building. If that is the question for this court, and I am confident that it is, I have no doubt, applying the standard of the reasonable man as best I can, that it ought not to be answered in the affirmative. It is, in my opinion, significant that no witness who spoke about the increasing use of the cinema by intruding children, and the witnesses included the minister of St. Paul's Church, the session clerk and the beadle, and also Mr Maloco, reported to the police or the defenders what they had observed. If it had crossed their minds that it was likely that the children would set fire to the building and put neighbouring properties at risk, it is inconceivable that they would not have taken immediate steps, by reporting to the police and the defenders, to bring the use of the premises by children to an end. My experience of life, which I am entitled to bring to bear as a juryman would, has not taught me that empty buildings, to which vandals gain access, are likely to be set on fire by them, and without labouring the matter further I am clearly of opinion that it has not been established, in the circumstances of this case, that the defenders, who were under a general duty to take reasonable care for the safety of the pursuers' premises, ought, in the performance of that duty, to have taken for the pursuers' benefit the particular precautions upon which the pursuers' actions depend.

What I have said so far is sufficient for the disposal of the reclaiming motions in the defenders' favour but in case these actions should go further I think that I ought to express my opinion briefly upon the other submissions to which we listened at the hearing.

The second submission for the defenders on the merits proceeded upon the assumption that they owed to the pursuers the particular duty to take the

precautions desiderated to prevent the unchecked intrusion of youngsters into the cinema. The defenders for reasons which were not obvious to me, contended that it had not been established that they had failed to fulfil this duty. I would have had no hesitation in rejecting that contention. The averments of the pursuers about the precautions which they desiderated fall to be read together. What they amount to is that the defenders ought to have employed a caretaker to keep an eye on the empty cinema and its security so that steps could have been taken to deal with breaches of the security when and if they occurred. The object of these precautions was to reduce the risk of the cinema becoming an open playground for children including vandals. The defenders took no steps at all to that end and after their contractors had finished their work and I would have been unable to find any ground whatever to justify any interference with the Lord Ordinary's conclusion upon this branch of the actions on the merits.

The third submission for the defenders was that the Lord Ordinary was not entitled to hold that if the precautions had been taken the cinema would probably not have been set on fire. Children broke into the premises when they were locked even at a time when contractors were in occupation daily. A caretaker would have had to be on 24 hour watch to keep out children who would have tried to outwit him. An arsonist could have broken in at night. In short, said the defenders, there was no evidence upon which the Lord Ordinary was entitled to conclude that a caretaker's presence would have deterred young intruders. Had it been necessary for the disposal of these reclaiming motions I would have had no hesitation in rejecting this submission also. It appears plain to me, as it was to the Lord Ordinary, that if the precautions desiderated had been taken the event which caused the damage suffered by the pursuers would probably not have occurred. It does not appear, indeed, that this third submission on the merits for the defenders was seriously advanced in the Outer House.

The remaining submissions at the hearing were concerned with the Lord Ordinary's assessment of damages for the destruction of the church.

The first point taken by the defenders was that the Lord Ordinary erred in law in determining what was the appropriate cost of re-instatement which the pursuers should be allowed in order to erect a new church building. Three designs had been submitted to the deacon's court, described as designs A, B and C. The Lord Ordinary decided to allow the cost of a building of design A, the slightly more expensive design. His error of law was, it was said, that in choosing design A in preference to the other two designs he took into account, contrary to the evidence, that there was some risk that designs B and C might not obtain planning permission. In my opinion the Lord Ordinary's choice was made simply because design A, which alone provided for coursed rubble lining on all exposed external surfaces, came "nearest to the original building". He then proceeded to mention the external characteristics of buildings of designs B and C which, he thought, would not be suitable replacements for the original church from the outside. As an afterthought he added the words "and might not even obtain the approval of the local planning authority." There was no warrant in the evidence for the Lord Ordinary's apprehension on the matter but the afterthought, in my opinion, was not essential to the decision which he had already taken, namely, to prefer design A. His approach, accordingly, was not flawed, by an error of law and on that assumption I understood senior counsel to concede that this court would not be entitled to interfere with the Lord Ordinary's choice of design A. In any event I

would have found no reason to quarrel with the Lord Ordinary's preference. The defenders' position was that on the evidence a building of design C, the cheapest of the three, would have been a perfectly suitable replacement for the old church, and since the pursuers were only entitled to damages upon the principle of reasonable restitution the court's award for the building of a replacement church should have been based on design C. I would not have accepted that submission. The architect's recommendation would have been in favour of design A because it is "more suitable for a building of this stature" and because the building would last longer. Design A, he agreed, was closest to the original church in spirit and fabric. The Lord Ordinary was well entitled in these circumstances to proceed upon design A.

The pursuers then submitted that the Lord Ordinary erred in allowing nothing for the replacement of the pipe organ which was destroyed with the fabric of the building into which it had been installed, and had erred further by deducting £20,000 from the estimate of costs of a building of design A because he assumed, wrongly, that the figure for fittings and furnishings which appeared therein had included a sum for replacement of the organ. The defenders accepted at once that the deduction should not have been made. The Lord Ordinary's reason for allowing nothing for the loss of the organ was that the only relevant basis of an award under this head was the market value of the organ at the time of destruction because, he said, a pipe organ is a chattel. No evidence of market value was before him. There was indeed no such evidence. As the Lord Ordinary tells us the only evidence led was evidence of the cost of replacement. Now it appears that the defenders did not dispute before the Lord Ordinary that the proper measure of damages was the cost of replacement and in answer to the pursuers' submission to us, were driven to fall back upon the contention that there was no really acceptable evidence of replacement cost and that although the pursuers were entitled to something, less than the sum claimed should be allowed. Upon that matter there was unchallenged evidence from the architect, Mr Rolland, based upon his experience as a general trustee, and at one time chairman, of the Church of Scotland's advisory committee on artistic matters, and much experience of working with church buildings. His opinion was that the replacement cost would be in the region of £40,000 or £50,000. For reasons best known to themselves the pursuers claimed only £29,757 and, having regard to Mr Rolland's evidence, I do not see why the pursuers should not have been allowed the sum they claimed if liability had been established.

The pursuers' final criticism of the Lord Ordinary's award was that he had deducted £151,614 from the cost of a building design A, i.e. approximately 20 per cent of the total. The reason given for this deduction was that the replacement church will have two advantages not enjoyed by the old one and because there is the possibility that the congregation might decide not to rebuild the church or might not obtain permission to do so. Counsel for the defenders accepted immediately that the only consideration to which the Lord Ordinary was entitled to apply his mind upon the evidence was whether, under the heading of "betterment", some deduction might be made from the total cost of replacing the church because the replacement building will be easier and cheaper to maintain because of the use of modern materials, and because it "will be more economic to heat and light." The position of the defenders before us was, accordingly, that although the Lord Ordinary's deduction is indefensible "something" should be

knocked off the total replacement cost for the savings in running costs which the pursuers will enjoy. Had it been necessary to do so I would have upheld the pursuers' challenge of the deduction made by the Lord Ordinary and I would have rejected the submission for the defenders, who frankly recognised the difficulties inherent in it. The point is simply this. The benefit of cheaper running costs will be the inevitable consequence of the pursuers' having to replace their lost church. They are clearly entitled to have that benefit without having to contribute to the cost of the new building. No deduction ought to be made. There is ample authority to support this conclusion in the circumstances of this case and it may be found, for example, in Hutchison v. Davidson 1945 S.C. 395; Fraser v. J. Morton Wilson Ltd. 1965 S.L.T. (Notes) 81; and Harbutt's "Plasticine" Ltd. v. Wayne Tank and Pump Co. Ltd. [1970] 1 Q.B. 447. The circumstances of this case are quite different from those in the cases of Morrison's Associated Companies Ltd. v. James Rome & Sons Ltd. 1964 S.C. 160 in which a "betterment" discount was properly applied.

Upon the whole matter of damages it is plain that, if the arithmetic is done, the pursuers would have been entitled to the sum sued for if they had succeeded on the merits of their action.

LORD GRIEVE .—Your Lordship in the chair has set out the factual background against which the issues in these reclaiming motions have to be considered. For the purposes of this opinion I gratefully accept that background, and I also accept, for the reasons given by your Lordship, that the main question of liability is at large for this court. As your Lordship has indicated that question is, whether, in the circumstances disclosed in the evidence, the defenders owed to the pursuers all, or any, of the duties of care which were averred on record by the pursuers, it being accepted that the defenders owed a general duty of care to the pursuers not to do anything or omit to do anything which they could reasonably foresee would injure the pursuers' property. Until the main question is resolved the subsidiary questions as to whether the specific duties averred, or any of them, were breached by the defenders, and, if so, whether that breach caused the damage to the pursuers' properties, do not arise.

In my opinion a convenient starting point from which to consider the main question in these reclaiming motions is the classic passage in the speech of Lord Macmillan in Bourhill v. Young 1942 SC (HL) 78 at p. 88, which never grows stale, and always bears repetition in cases of this kind. I make no apology for quoting it:

"The duty to take care is the duty to avoid doing or omitting to do anything, the doing or omitting to do which may have as its reasonable and probable consequence, injury to others, and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed. There is no absolute standard of what is reasonable and probable. It must depend on circumstances it must always be a question of degree."

Keeping that passage in mind I move on to the speech of Lord Thankerton in Muir v. Glasgow Corporation 1943 SC (HL) 3 at p. 8, where his Lordship, after referring to it, said:

"Further this is essentially a jury question, and in cases such as the present one, it is the duty of the Court to approach the question as if it were a jury, and a Court of Appeal should be slow to interfere with the conclusions of the Lord Ordinary. The Court must be careful to place itself in the position of the persons charged with the duty."

Counsel on both sides of the bar accepted that the Lord Ordinary had adopted the correct approach for the purpose of finding a solution to the problem which faced him, that is to say by threatening the problem as "a sort of jury question for judges" ( Harvey v. Singer Manufacturing Co. Ltd. 1960 SC 155 , per Lord Justice-Clerk Thomson at p. 164). As the question is now at large for this court the same approach must be adopted.

Senior counsel for the pursuers accepted that the Lord Ordinary had misdirected himself by taking into consideration the two fires of which the defenders knew nothing, and also by applying the "very likely" standard of foresight. However, he submitted, as I understood him, that, had the Lord Ordinary ignored the two fires, and applied the correct test, namely that of reasonable foreseeability, in the sense of foreseeing what was "likely" to happen, he would still have been in the respondents' favour, because he would have held that the persons who gained access to the cinema premises would have been "likely" to start a fire although not "very likely" to start one. Accordingly as the Lord Ordinary had correctly considered the matter as a jury question, his conclusion should not readily be interfered with ( Muir v. Glasgow Corporation , per Lord Thankerton at p. 8). I am bound to say that it does look as if the Lord Ordinary considered that what was "likely" to happen only required "bare foreseeability", and what was "very likely" to happen required "reasonable foreseeability". If that is right, in my opinion the Lord Ordinary was wrong; but I am not at all satisfied that the Lord Ordinary had such a concept in mind. In any event I am not persuaded that, had he not had the evidence of the two fires before him, he would have held that the defenders ought reasonably to have foreseen that it was likely intruders would start a fire in the cinema. Even if he had, I am quite satisfied that that is not an end of the matter. As I indicate hereafter, what the defenders were required reasonably to foresee, if they were to be held to be obliged to perform the duties averred, was not only that intruders would light a fire, but that they would light such a fire as was designed to set the cinema ablaze.

I think it is very reasonable to assume that, had a judge been charging a jury in this case, he would have suggested to the jury that they proceed by stages. In short, that they adopt the approach, suggested by counsel for the respondents in their careful, and persuasive submissions. It was as follows, as I understood it. The first stage is to consider what the defenders, in the light of such knowledge as they had about the situation and condition of the Regal Cinema building at the time they took control of it, should reasonably have anticipated would happen if they did not take any steps to keep their premises lockfast and secure. They knew the building was in the centre of Dunfermline, between two busy thoroughfares, which were connected by a passageway (Macpherson's Close) which was adjacent to one side of the cinema. They certainly ought to have known that the dismantling of the seats and other articles from the inside of the building, and the fact that it would eventually be demolished would be a matter of public knowledge. It was a "well kent" feature of Dunfermline, and it would only be reasonable to assume that children and young persons would be tempted to try and get into it, and see what it was like with all the seats and much of the equipment removed. In these circumstances counsel on both sides of the bar accepted that the defenders ought reasonably to have foreseen that children, and young persons particularly, and perhaps others as well, would try to get into the

building while it was unoccupied. The Lord Ordinary was also of that view and, looking at the evidence with a juryman's eye, I share it.

The second stage suggested was to consider whether persons who gained entry, either forcibly or otherwise, would be likely to damage the building or anything in it. The Lord Ordinary thought that they would, and that such should reasonably have been anticipated by the defenders. Again I agree, and, disregarding for the moment the question of any such intruder starting a fire in the building, I did not understand the reclaimers to disagree.

The third stage would involve

the judge suggesting to the jury that they should ask themselves a question such as this:

"If you consider that the defenders ought reasonably to have anticipated that intruders would enter the cinema building, should they also have anticipated, in the exercise of reasonable foresight, that such intruders would light a fire or fires in the unoccupied premises?"

The only evidence that any intruder did light a fire in the cinema premises was that of Mr Scott, who spoke to the smouldering piece of carpet which he stamped out with his foot. That incident, however, was unknown to the defenders and the judge would have had to tell the jury to disregard it. Accordingly there was no evidence to put before the jury that a fire had ever been lit in the cinema. Counsel for the respondents urged us to conclude that the defenders' experience of life should have caused them to anticipate that intruders into their premises would start a fire or fires. As a juror I would have found that proposition difficult to accept, and as a judge, viewing the question as a juror, I find it equally difficult. There was nothing in the building, so far as the evidence disclosed, to indicate that there were materials there which were combustible and which would entice people to light them and thus start a fire. It may well be that some vandals who enter disused or unoccupied buildings start fires therein, but I cannot find any evidence in this case to persuade me that the defenders should reasonably have anticipated that any persons who gained entry to their premises were likely to do so, and my experience of life, such as it is, does not persuade me to take a contrary view. For my part that is really the end of the matter, because it was an essential feature of the respondents' submissions that the defenders should have anticipated that the persons who gained access to their premises would start a fire or fires therein. Fire, it was submitted, once started acts unpredictably, and therefore, if fire should have been anticipated, it is unnecessary to go on to consider whether the kind of fire which actually caused the damage should have reasonably been foreseen. Senior counsel for the respondents put the matter this way:

"Once you can reasonably foresee vandalism there is no limit to the form of it which you ought to foresee."

In my opinion that proposition is too extreme to be reasonable, and I do not accept it.

I think a judge would, and should, have told a jury that if they took the view that the defenders should reasonably have anticipated that intruders would start a fire or fires in the building, that was not an end of the matter. It was necessary for them to go on to consider whether the defenders ought reasonably to have foreseen that the intruders would start such a fire as was likely to engulf the whole building and spread beyond it. From such evidence as is available about the fire itself, it would seem to me that a jury, applying their common sense, would have answered that question in the negative, and, applying my common sense, such as it is, I would have done the same. Arson does occur, but happily it is not an everyday occurrence.

If, contrary to the opinion which I have expressed, the defenders should reasonably have anticipated that persons who entered their premises in Dunfermline would be likely to set fire to them with a view to their destruction, I would have had no hesitation in holding, not only that they were under the duties averred on record, none of which they carried out, but also that on the balance of probabilities their failure to carry out all or any of them materially contributed to the damage sustained by both of the pursuers.

The critical question in this case, however, is whether the defenders as reasonable proprietors of unoccupied, and partially dismantled, premises in the middle of Dunfermline, should reasonably have anticipated that, if they omitted to take steps to safeguard the security of their premises, ill disposed persons would not only gain entry to them, but would set them ablaze with the probable result of neighbouring property sustaining damage as well. To my mind, as a juror, "from bias free of every kind", it would be stretching foresight beyond the bounds of reason to answer that question in the affirmative. My negative answer means that, like your Lordships, I am of opinion that the reclaiming motions succeed. Further I am in entire agreement with the reasons given by both your Lordships for so holding.

Questions as to the quantum of damages no longer arise, and in these circumstances I simply express my agreement with what your Lordship in the chair has said on that matter.

LORD BRAND .—I respectfully agree with the summary given by your Lordship in the chair of the issues which arise in these reclaiming motions.

In my opinion the question of liability depends on the simple question of whether it has been proved that it was reasonably foreseeable by the defenders that, unless they protected the cinema by the provision of a caretaker or otherwise, vandals would be likely, not only to enter it, but to cause a major conflagration such as occurred. As I read the Lord Ordinary's opinion, it is clear that he would have answered that question in the negative had he not taken account of evidence of antecedent fires of which the defenders had no knowledge. His view was that the lighting of a fire in the premises was "very likely" and "reasonably foreseeable" because of the evidence of the earlier fires. Before us it was conceded that the Lord Ordinary misdirected himself in proceeding on the basis of information about the said fires which was unknown to the defenders. In that situation the question is whether there is any evidence to support the Lord Ordinary's conclusion on foreseeability.

Let it be assumed that the derelict cinema was an attraction or allurement to children where they gave vent to their destructive instincts and that this was known to the defenders, the critical question remains whether it was reasonably to be anticipated that commonplace vandalism would culminate in major fire-raising. The cinema was built of brick. In these circumstances it seems to me that it was highly improbable that, if any fire was lit, it would consume the building and spread beyond it unless it was assisted by some highly inflammable substance, such as petrol of which there is no evidence. The only evidence relating to the fire is that it started in the balcony and went up the rear wall. There is no evidence as to how or by whom it was started. It was certainly not the kind of fire that one would expect to result from childish vandalism. It is one thing to set fire to a haystack but even a determined arsonist would have difficulty in

destroying a brick building unless armed with a highly inflammable substance. In my opinion there is no evidence that children were likely to cause a fire risk to the derelict cinema.

For the foregoing reasons and viewing the matter as a jury question I have reached the conclusion that it has not been proved that it was reasonably foreseeable by the defenders that, unless they took the precautions condescended on, damage by fire to the fabric of the cinema was likely to ensue.

We were referred to the opinion of the Lord Ordinary (Lord Mackay of Clashfern) in Playtex (U.K.) Ltd. v. Kelman (unreported) decided on 12th February 1985. The claims arose out of a fire and a number of explosions in a container depot where there were four sheds. The fire was started by children who had taken some cardboard which was lying immediately north of one of the sheds, to make a den against the northern wall thereof and had lit a fire in the den. The fire took hold of the northern side of the building and quickly travelled up the wall which was lined with a bituminous material up to the roof and engulfed the whole building. The fire spread to another shed and damage to other property was caused by explosions in the first shed where sodium chlorate was stored. In the course of his opinion Lord Mackay of Clashfern said:

"In the whole circumstances I am of opinion that in the absence of any evidence that children had created or were likely to create a fire risk to shed A the defenders are not shown to have been negligent"

in failing to take various precautions. In my opinion the relevant circumstances with which his Lordship was dealing were basically similar to those disclosed in the present actions. I respectfully agree with the views expressed by Lord Mackay of Clashfern in the passage which I have quoted. It follows that the duty to take precautions against the creation of a fire risk to a building by children only arises where it is known that children had created or were likely to create such a risk. In the present actions the pursuers have failed "to clear the hurdle of foreseeability" ( per Lord Justice-Clerk Grant in Fraser v. Glasgow Corporation 1972 S.C. 162, at p. 173).

Counsel for the reclaimers presented an argument under reference to such cases as Dorset Yacht Co. v. Home Office

[1970] AC 1004

and McLoughlin v. O'Brian

[1983] 1 AC 410

that, unless there was a special relationship between the alleged wrongdoer and the perpetrator of the wrong, there was no liability to the injured party. In my opinion the question of liability in the present actions depends solely on the law of neighbourhood as enunciated in Donoghue v. Stevenson 1932 SC (HL) 31 and has nothing to do with the question of any special relationship between those who caused the fire and the reclaimers.

If, contrary to the views which I have expressed, I had reached the conclusion that the occurrence of the fire was reasonably foreseeable by the defenders, I would have had no difficulty in holding that it was caused by their negligence in failing to take the precautions desiderated by the pursuers. Whatever may be said of the probable efficacy of the other measures, I am of opinion that the employment of a watchman would have materially reduced the risk of the building being set on fire by vandals and was an obvious precaution to take if there was foreknowledge of the risk.

On the whole matter I agree with your Lordships that the reclaiming motions succeed and that the defenders are entitled to decree of absolvitor in both actions.

On the question of the assessment of damages I am in complete agreement with the opinion of your Lordship in the chair.

The pursuers appealed to the House of Lords. The appeal was heard in that House by Lord Keith of Kinkel, Lord Brandon of Oakbrook, Lord Griffiths, Lord Mackay of Clashfern and Lord Goff of Chieveley on 13th and 14th October 1986.

At delivering judgment, on 5th February 1987,—

LORD KEITH OF KINKEL .—My Lords, I have had the advantage of considering in draft the speeches to be delivered by my noble and learned friends Lord

Mackay of Clashfern and Lord Goff of Chieveley. I agree with them, and for the reasons they give would dismiss these appeals.

LORD BRANDON OF OAKBROOK .—My Lords, it is axiomatic that the question whether there has been negligence in any given case must depend on the particular circumstances of that case. That being so, I do not think that these appeals can in the end be determined by reference to other reported cases in which the particular circumstances were different, even though some degree of analogy between such other cases and the present one can legitimately be drawn. Nor do I think that it is possible, however helpful it might otherwise be, to lay down any general principle designed to apply to all cases in which the negligence alleged against a person involves the unauthorised acts of independent third parties on premises owned or occupied by that person.

The particular facts of the present case appear to me to raise two, and only two, questions, on the answers to which the determination of the appeals depends.

The first question is what was the general duty owed by Littlewoods, as owners and occupiers of the disused cinema, to the appellants, as owners or occupiers of other buildings near to the cinema. The answer to that question is, in my view, that Littlewoods owed to the apellants a duty to exercise reasonable care to ensure that the cinema was not, and did not become, a source of danger to neighbouring buildings owned or occupied by the appellants.

The second question is whether that general duty encompassed a specific duty to exercise reasonable care to prevent young persons obtaining unlawful access to the cinema, and, having done so, unlawfully setting it on fire. The answer to that question, in accordance with general principles governing alike the law of delict in Scotland and the law of negligence in England, must depend on whether the occurrence of such behaviour was reasonably foreseeable by Littlewoods. It should have been reasonably foreseeable by Littlewoods if they had known of the activities of young persons observed by certain individuals in the locality. But they did not know of such activities because the individuals concerned did not inform either Littlewoods or the police of them, nor did the police themselves observe them. In the absence of information about such activities, either from the individuals referred to or from the police, I am of opinion that the occurrence of the behaviour in question was not reasonably foreseeable by Littlewoods. I conclude, therefore, that the general duty of care owed by Littlewoods to the appellants did not encompass the specific duty referred to above.

For these reasons I would dismiss the appeals.

LORD GRIFFITHS .—My Lords, I regard these appeals as turning upon the evaluation and application of the particular facts of this case to a well established duty and standard of care. I agree so fully with the statement and evaluation of the facts appearing in the speech of my noble and learned friend, Lord Mackay of Clashfern, that I can state my own reasons for dismissing these appeals very shortly.

The duty of care owed by Littlewoods was to take reasonable care that the condition of the premises they occupied was not a source of danger to neighbouring property.

The standard of care required of them was that stated in general terms by Lord Radcliffe in Bolton v. Stone

[1951] AC 850

, at pp. 868–869 and expanded in more

particularity by Lord Wilberforce in Goldman v. Hargrave

[1967] 1 AC 645

at pp. 662–663 when dealing with a fire upon premises caused by an outside agency. I refrain from citing these passages as both appear in the speech of my noble and learned friend, Lord Mackay of Clashfern.

Listening to the seductive way in which senior counsel for the appellants developed his argument on the facts step-by-step, as described by Lord Mackay of Clashfern, I was reminded of the fable of the prince who lost his kingdom but for the want of a nail for the shoe of his horse. A series of foreseeable possibilities were added one to another and, hey presto, there emerged at the end the probability of a fire against which Little woods should have guarded. But, my Lords, that is not the common sense of this matter.

The fire in this case was caused by the criminal activity of third parties upon Littlewoods' premises. I do not say that there will never be circumstances in which the law will require an occupier of premises to take special precautions against such a contingency but they would surely have to be extreme indeed. It is common ground that only a 24-hour guard on these premises would have been likely to prevent this fire, and even that cannot be certain, such is the determination and ingenuity of young vandals.

There was nothing of an inherently dangerous nature stored in the premises, nor can I regard an empty cinema stripped of its equipment as likely to be any more alluring to vandals than any other recently vacated premises in the centre of a town. No message was received by Littlewoods from the local police, fire brigade or any neighbour that vandals were creating any danger on the premises. In short, so far as Littlewoods knew, there was nothing significantly different about these empty premises from the tens of thousands of such premises up and down the country. People do not mount 24-hour guards on empty properties and the law would impose an intolerable burden if it required them to do so save in the most exceptional circumstances. I find no such exceptional circumstances in this case and I would accordingly dismiss the appeals.

I doubt myself if any search will reveal a touchstone that can be applied as a universal test to decide when an occupier is to be held liable for a danger created on his property by the act of a trespasser for whom he is not responsible. I agree that mere foreseeability of damage is certainly not a sufficient basis to found liability. But with this warning I doubt that more can be done than to leave it to the good sense of the judges to apply realistic standards in conformity with generally accepted patterns of behaviour to determine whether in the particular circumstances of a given case there has been a breach of duty sounding in negligence.

LORD MACKAY OF CLASHFERN .—My Lords, the defenders and respondents in these consolidated appeals, to whom I shall refer as "Littlewoods", purchased the Regal Cinema in the centre of Dunfermline from its previous owners with entry on 31st May 1976. Littlewoods' intention was to demolish the cinema within a short time and to replace it by a supermarket. On 5th July 1976, in consequence of a fire which began in the cinema, a cafe and billiard saloon which lay close to the cinema on the west known as the Cafe Maloco was seriously damaged and St. Paul's Church which lay also to the west but at a slightly greater distance from the cinema was so substantially damaged that it had to be demolished. Dunfermline lies within the area of the Fife constabulary. The issues in both

actions are the same and they have been heard together at every stage. The owners of the affected properties to whom I shall refer as "the appellants" claimed against Littlewoods for the damage done to their properties alleging that the damage was caused by negligence on the part of Littlewoods. Littlewoods, in turn, claimed that if they were at fault the Chief Constable of the Fife Constabulary or his officers were also at fault and he should be held liable to make a contribution to the award made against Littlewoods. The Lord Ordinary held that the claims had been established against Littlewoods and pronounced awards in favour of both owners. He found that Littlewoods' case against the Chief Constable had not been established. Littlewoods accepted the decision relating to the Chief Constable but reclaimed against the awards which had been made against them. The First Division of the Inner House of the Court of Session unanimously allowed the reclaiming motions and recalled the Lord Ordinary's interlocutors. The First Division also dealt with matters relating to the size of the award made in favour of the owners of St. Paul's Church.

The appellants have now appealed to this House and have argued that the Lord Ordinary's interlocutors should be restored, subject to alteration in the amount awarded in favour of the owners of St. Paul's Church. No question relating to the size of the awards remains outstanding between the parties; they are agreed on the amounts to be awarded if the appeals succeed.

The cinema comprised a substantial brick-built auditorium with a balcony at the north end and a flat timber and felt covered roof on a steel frame. It was reached from the High Street by a lengthy foyer partly of similar construction and otherwise traditionally stone-built and slated, three storeys in height. The main building of the cinema was set back a considerable distance from the High Street. To the east of the cinema entrance in the High Street there was a passageway known as Macpherson's Close which ran down the length towards the south on the east side of the main building. Immediately to the south of the main building lay the car park to which entry was gained from Canmore Street lying to the south of the property. Macpherson's Close was regularly used by the public as a short cut from Canmore Street to the High Street. Another close known as the West Close ran from the north side of the car park round the west side of the main building and then at the north end of the main building turned eastwards to join Macpherson's Close. This last section of the West Close passed under the section of the cinema which connected its main building with the front entrance in the High Street. On the west side of West Close was Cafe Maloco and to the southwest of the cinema and beyond certain properties lying immediately to the west of the West Close lay St. Paul's Church, which was a Victorian gothic building with a small wooden turret. The main building of the cinema had a number of exit or fire doors with locking bars designed to be opened only from the inside which were set in the walls of the cinema.

The last showing of a film in the cinema took place on 29th May 1976. Although legal entry was given on 31st May 1976 the keys were not handed over to Littlewoods until about 14th June. During that period the previous owners employed contractors to remove fittings and equipment from the cinema which were worth taking away but which were of no interest to Littlewoods. Before these contractors had finished their task contractors employed by Littlewoods arrived at the premises to make certain site investigations and to do some preliminary work on foundations. Littlewoods' contractors were present and

working for about three weeks; the first two were spent in the area of the cinema car park and thereafter they spent about four days working inside the premises. From about the end of the third week in June 1976 the cinema remained empty and unattended by any persons employed by or giving services to Littlewoods.

The evidence established that children began to overcome the security of the cinema building by breaking into it in one way or another in the period of about four days when Littlewoods' contractors were doing preliminary work inside the premises during or towards the end of the third week in June 1976. Although these contractors locked and secured the premises when they finished work each night, they discovered on their return in the mornings clear signs that the premises had been forcibly entered. Some of the fire doors had been forced open from inside and the locking bars had been broken. The contractors then had to secure the doors which had been so affected by tying them with rope to the stage. When they finished their work they left the premises as secure as they could make them. Thereafter the security of the premises was again overcome by children and young persons; and children and young persons resorted to the premises with increasing regularity for play, horseplay and the pleasure of making a mess and breaking whatever they could find to break. The Lord Ordinary (Cowie) held that it was amply established that by the first few days of July 1976 anyone with half an eye who made use of Macpherson's Close could have seen that the main building of the cinema was no longer lockfast and was being regularly entered by unauthorised persons. Paper and debris were scattered about the auditorium, and in Macpherson's Close outside the building debris increased, consisting of bricks, glass and old films. During the time that Littlewoods' contractors were working inside the main building one of the contractors' employees saw lengths of old cinema film lying in Macpherson's Close and noticed signs of someone having attempted to set fire to them. The type of film used in the cinema was non-inflammable and no fire had occurred. About the end of June Mr Scott, who was the beadle of St. Paul's Church and of another church in the vicinity, saw signs of someone having tried to light a fire inside the building. His attention had been attracted because some children had run out of the building as he approached. When he went inside he found that the carpet, where oil had been spilled on it, was burning. He put it out very easily by stamping on it and told Mr Kerr, the session clerk of St. Paul's, about it. Neither Mr Scott nor anyone else informed the police or Littlewoods about any of these matters. As the Lord Ordinary put it:

"Nevertheless, in spite of these obvious signs of the building having been violated by unauthorised persons, no one saw fit to report the matter to the police or to attempt to bring it to the attention of the defenders or their representatives."

A notice at the front of the cinema contained the necessary particulars of Littlewoods.

On 5th July 1976 about 6.30 p.m. a large ceramic sink from a toilet on the top floor of the main building of the cinema landed on the roof of the billiard saloon in Cafe Maloco. It was thrown from a window on the west side of the cinema by boys of 13 or 14 years of age. The police were called and detained two boys.

Between 8.00 and 9.00 p.m. on the same day a passer-by noticed three teenagers come out of Macpherson's Close and soon after she saw smoke coming from the close. The police and the fire brigade were called but the fire which started in the south-west corner of the balcony soon engulfed the whole building.

The efforts of the fire brigade were impeded by inability to get a supply of water from the fire hoses.

The Lord Ordinary concluded, and there was no challenge to the correctness of his conclusion, that the fire which started on 5th July 1976 was deliberately started by children or teenagers and that the teenagers that the passer-by saw emerging from Macpherson's Close shortly before the smoke started to come out were probably responsible. Apart from the contractors employed by Little woods, to whom I have referred, the only person employed by Littlewoods who gave evidence was a member of the architectural department who was responsible for the design and supervision of the construction of buildings for the company. He visited the cinema about the middle of June and according to his evidence it was secure at that time.

The claims are based on the allegation that Littlewoods, as owners and occupiers of the Regal cinema, had a duty to take reasonable care for the safety of premises adjoining; that they knew or ought to have known that a disused cinema would be a ready target for vandals; and that they knew or ought to have known that their cinema was, in fact, the subject of extensive vandalism and that if they did not take steps to prevent the entry of vandals not only would such vandals cause damage to Littlewoods' property, whether by fire or otherwise, but further such fire might spread and cause damage to adjoining properties. In these circumstances, it was claimed that Littlewoods had a duty to take reasonable care to keep and maintain the premises lockfast, to cause frequent and regular inspection to be made and to lock and board up any doors and windows found to be open or smashed and to employ a caretaker to watch over the premises and to prevent the entry of vandals. In the course of the hearing before your Lordships counsel for the appellants accepted that, in the light of the evidence, the only precaution that was likely to be effective in preventing the entry of vandals was to arrange for a 24-hour watch to be maintained on the premises. Littlewoods, while accepting that as owners and occupiers of the premises they had a duty to take reasonable care for the safety of premises adjoining, strenuously denied that they owed the duties on which these claims are founded.

The Lord Ordinary, after examining the authorities, concluded that whether such duties were owed by Littlewoods or not depended on the answer to the question "bearing in mind that [Littlewoods] had no control over the children and teenagers, was it reasonably foreseeable by [Littlewoods] that, by failing to keep the cinema lockfast and to inspect it regularly during the last half of June and the first few days of July 1976, children and young persons would not only enter it, but start a fire?" He considered that it-was appropriate that he should treat this as a jury question and try to answer it as a jury would. He said:

"In the absence of any evidence about the lighting of fires, it would have been difficult to say that it was ‘very likely’ that children and young persons breaking into these premises would start a fire, but in the present instance there is evidence that on two occasions shortly before 5th July 1976 witnesses saw signs of someone having tried to start a fire. … I accept that there is a very narrow dividing line in the circumstances of this case between bare foreseeability and reasonable foreseeability, but having applied my mind to that problem I have reached the conclusion that the lighting of a fire in the premises by children or teenagers was in the circumstances reasonably foreseeable."

This conclusion he reached with some hesitation.

Before the First Division it was accepted by the appellants that, on the evidence, Littlewoods had no knowledge of the attempts to start fires to which the Lord Ordinary referred in the passage I have quoted and that, accordingly, in considering whether Littlewoods were bound reasonably to foresee that as a consequence of their inaction a fire would be started in their building and not only engulf it but cause damage to buildings nearby, these required to be left out of account unless it could be said that they had a duty to know of them. If they had not such a duty the Lord Ordinary's decision on this crucial matter was open for review by the judges of the First Division. The judges of the First Division unanimously concluded that the question was at large for their consideration and that in the circumstances it had not been shown that it was reasonably to be foreseen by Littlewoods that if they took no steps to discourage widespread use of the cinema by youngsters, including vandals, one or more of them, or some other intruder, would be likely deliberately to set fire to the building or deliberately to set such a fire in such a place as would be likely to engulf the building.

Senior counsel for the appellants in his very persuasive submissions to your Lordships suggested that this crucial question should be approached in stages. First he submitted that by reason of the particular features of this building it was reasonably foreseeable by Littlewoods that young persons were likely to be attracted to the building and would attempt to overcome such security as there was and would attempt to gain entry. The second submission was that it was reasonably foreseeable that if the building was insecure and remained insecure it would be entered. Further, it was reasonably foreseeable that a proportion of such young persons would be intent on causing damage within the building which might have an effect on adjoining property. The fourth step in the argument was that it was reasonably foreseeable that such damage would include damage by fire which, being unpredictable, was likely to take hold of the fabric of the building. And the final step in the logical progression was that it was reasonably foreseeable that if the fire took hold of the building it would engulf the building and, since the building was large, the fire would readily spread to adjoining properties.

In support of these submissions and particularly the submission that it was reasonably foreseeable that such damage would include damage by fire, counsel referred to three decisions in which conduct of this kind had come to the notice of the courts: Evans v. Glasgow D.C. 1978 S.L.T. 17, in which it was alleged that one of the forms vandalism had taken in that case was that ignited material had been dropped through damaged floors of a flat above the pursuer's premises with the consequence that the contents of these premises were destroyed almost entirely; Carrick Furniture House Ltd. v. Paterson 1978 S.L.T. (Notes) 48, in which it was alleged that persons had entered and deliberately set fire to the premises in question; and thirdly, Thomas Graham & Co. Ltd. v. Church of Scotland General Trs. 1982 S.L.T. (Sh. Ct.) 26, in which vandals had entered a church and set it on fire. Counsel also referred to the Criminal Justice (Scotland) Act 1980, sec. 78, in which while defining the statutory offence of vandalism as committed by "any person who, without reasonable excuse, wilfully or recklessly destroys or damages any property belonging to another" Parliament excepted from that offence what would constitute the offence of wilful fire-raising. From that statutory provision, and these instances, counsel argued that it was right that the court should take notice that one of the forms in which persons wilfully or

recklessly destroy or damage property belonging to others is by wilful fire-raising.

He further referred to Hughes v. Lord Advocate 1963 SC (HL) 31 as demonstrating the unpredictability of children's behaviour as a factor to be taken into account in dealing with a question such as is raised here.

Counsel submitted further, and anticipating what might be urged against him, that although the actions that caused the fire were those of vandals over whom Littlewoods had no control, his case was founded on the need that arose in consequence of the likely results of allowing vandals into the building to take precautions to keep them out. The test of whether such precautions should be taken was, in counsel's submission, whether it was reasonably foreseeable by Littlewoods that if they did not take these precautions there was a substantial risk that the neighbouring properties would be damaged. He referred particularly to Dorset Yacht Co. Ltd. v. Home Office

[1970] AC 1004

and to the speech of Lord Reid where, referring to the well-known passage in Lord Atkin's speech in Donoghue v. Stevenson 1932 SC (HL) 31 at p. 44, Lord Reid said, at p. 1027:

"[It] should I think be regarded as a statement of principle. It is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. But I think that the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion."

Counsel submitted that it would not be right to regard damage caused by persons over whom the defender has no control as excluded from this statement of principle. Rather, said counsel, one should take account of actions of third parties over whom the defender has no control in considering the consequences of acts or omissions on the defender's part. He referred in support of this submission to the later passages in Lord Reid's speech where he dealt with this question. As an illustration of this approach being taken in Scotland, he referred to Squires v. Perth and Kinross D.C. 1985 SC 297 , in which jewellers successfully sued building contractors who were working in a flat above their shop for not adequately securing the flat against entry by thieves. A thief entered the jewellers' premises through the flat by climbing up a drain pipe at the back of the property to which he obtained access by climbing over a building. A substantial quantity of jewellery was stolen.

For Littlewoods senior counsel submitted that on the findings of fact in the present case Littlewoods had not established, applying the test of reasonable foreseeability, the existence of a risk sufficient to have obliged Littlewoods to adopt in advance of the catastrophic fire the only one of the prescribed remedies that might have avoided that occurrence, namely, having the premises watched all the time. He also advanced a broader proposition that the policy of the law should deny these claims, first because they involved an unwarranted invasion of the basic right of a person to use his property as he pleased and, secondly, because affirming these claims implied potential obligations on those who leave property unoccupied for a comparatively short time that would be unduly heavy having regard to the purpose intended to be served. Or, putting the matter another way, he submitted that the law should put the responsibility for securing the safety and security of property against vandals on the owner or occupier of the property and not on neighbouring owners or occupiers from whose property damage by vandals and thieves might be caused. In support of the submission that affirming the claims in the present case would have the result of placing unduly heavy burdens on the owners or occupiers of property, he pointed out that there was no evidence

that this building was in any way a special fire hazard, nor was there evidence that this part of Dunfermline was specially subject to vandalism.

In approaching these rival submissions it has to be borne in mind that the damage to the neighbouring properties, upon which the claims against Littlewoods are founded, is damage by fire or otherwise resulting from vandalism in Littlewoods' premises. A duty of care to prevent this damage is the only duty alleged to be incumbent upon Littlewoods relevant to this case. From this it follows that unless Littlewoods were bound reasonably to anticipate and guard against this danger, they had no duty of care, relevant to this case, requiring them to inspect their premises. Unless, therefore, Littlewoods, on taking control of these premises without any knowledge of the subsequent history of the property after they assumed control, ought reasonably to have anticipated that they would be set on fire and thus or otherwise create a substantial risk of damage to neighbouring properties if they did not take precautions, the claims must fail. By approaching the matter in five logical steps, senior counsel for the appellants made it appear easier to reach the result for which he contended than it would be if one assumed only Littlewoods' proved state of knowledge and asked whether, in that state of knowledge, they were to anticipate, as a reasonable and probable consequence of their inaction, that a substantial risk of fire damage to their neighbours was created. As I have said, the Lord Ordinary's answer to the basic question in the case depended, and depended critically, on his assumption that Littlewoods were to be taken as aware of the evidence relating to the attempt to start a fire in the lane with the abandoned film and to the smouldering carpet which Mr Scott extinguished. It is plain from the way in which the Lord Ordinary expresses his opinion that, had it not been for his reliance upon that evidence against Littlewoods, he would not have found against them. There was no evidence that Littlewoods knew of these matters. Unless they had a duty to inspect there is no basis on which it can be alleged that they ought to have known of them. Since the only basis on which any relevant duty of care is said to arise is that damage to neighbouring properties was to be anticipated unless it were exercised, in considering whether such damage should have been anticipated one cannot assume that any of the relevant duties should have been performed. I conclude that the Lord Ordinary was not entitled to assume that Littlewoods should have known of these matters. The First Division concluded, as I have said, that the matter was at large for their consideration. In my opinion, their Lordships of the First Division applied their minds to the correct question. In my opinion, the question whether, in all the circumstances described in evidence, a reasonable person in the position of Littlewoods was bound to anticipate as probable, if he took no action to keep these premises lockfast, that, in a comparatively short time before the premises were demolished, they would be set on fire with consequent risk to the neighbouring properties is a matter for the judges of fact to determine. Once it has been determined on the correct basis, an appeal court should be slow to interfere with the determination: see, for example, Lord Thankerton in Muir v. Glasgow Corporation 1943 SC (HL) 3 , at p. 8, and Lord Porter in Bolton v. Stone

[1951] AC 850

, at p. 860.

The cases to which senior counsel for the appellants drew attention in his argument, and sec. 78 of the Act of 1980, illustrate that a consequence of this kind, if premises are left unoccupied, is a possibility, but the extent to which such an occurrence is probable must depend on the circumstances of the particular

case. While no doubt in this case, as the judges in the courts below have found, it was probable that children and young persons might attempt to break into the vacated cinema, this by no means establishes that it was a probable consequence of its being vacated with no steps being taken to maintain it lockfast that it would be set on fire with consequent risk of damage to neighbouring properties. A telling point in favour of Littlewoods is that, although Littlewoods' particulars were shown on a board prominently displayed at the front of the premises, no one made any protest to them about the state of the premises, or indicated to them any concern that, unless they took some action, neighbouring premises were at risk. If, in the light of the common knowledge in the neighbourhood, it had been anticipated that the cinema might be set on fire, with consequent risk to adjoining properties, I should have thought the persons concerned with the safety of adjoining properties, who were certainly among those acquainted with the situation, would have communicated their anxieties to Littlewoods. Neither is there evidence that the police were ever informed of the situation with regard to the cinema, and this I would take as further confirmation that, in the circumstances, no one anticipated any adverse consequences arising from it. It is true that Mr Scott, the beadle, spoke of anxiety for the safety of children, and also made some reference, in that connection, to the possibility of fire, but any concern he had was not apparently sufficiently substantial to prompt him to take any action whatever in the way of seeking to have the situation remedied by the owners or the police.

This is sufficient for the disposal of these appeals but in view of the general importance of some of the matters raised in the parties' submissions it is right that I should add some observations on these.

First, senior counsel for the appellants urged us to say that the ordinary principle to be deduced from Lord Atkin's speech in Donoghue v. Stevenson should apply to cases where the damage in question was caused by human agency. It is plain from the authorities that the fact that the damage, upon which a claim is founded, was caused by a human agent quite independent of the person against whom a claim in negligence is made does not, of itself, preclude success of the claim, since breach of duty on the part of the person against whom the claim is made may also have played a part in causing the damage. In dealing with the submission in Dorset Yacht Co. Ltd. v. Home Office that the claim must fail because there was a general principle that no person can be responsible for damage caused by the acts of another who is not his servant or acting on his behalf, Lord Reid, having quoted from Haynes v. Harwood [1935] 1 K.B. 146, and from Scott's Trs. v. Moss (1889) 17 R. 32, said, at p. 1030:

"These cases show that, where human action forms one of the links between the original wrongdoing of the defendant and the loss suffered by the plaintiff, that action must at least have been something very likely to happen if it is not to be regarded as novus actus interveniens breaking the chain of causation. I do not think that a mere foreseeable possibility is or should be sufficient, for then the intervening human action can more properly be regarded as a new cause than as a consequence of the original wrongdoing. But if the intervening action was likely to happen I do not think that it can matter whether that action was innocent or tortious or criminal. Unfortunately, tortious or criminal action by a third party is often the ‘very kind of thing’ which is likely to happen as a result of the wrongful or careless act of the defendant. And in the present case, on the facts which we must assume at this

stage, I think that the taking of a boat by the escaping trainees and their unskilful navigation leading to damage to another vessel were the very kind of thing that these Borstal officers ought to have seen to be likely."

It has to be borne in mind that Lord Reid was demonstrating only that the submission with which he was dealing was incorrect. If a person can be responsible for damage caused by acts of another who is not his servant nor acting on his behalf that sufficed to answer the question that Lord Reid had before him in the respondent's favour. It was accordingly not critical whether the test was foreseeability of that damage as likely or very likely. At the stage at which Lord Reid used the phrase "very likely" he was giving his view on what the two cases he had cited showed. In the first of these, the phrase used ( per Greer L.J. [1935] 1 K.B. 146 at p. 156) is "the very kind of thing which is likely to happen," and in the second, the consequence that was being considered was described in the passage quoted from Lord President Inglis (1889) 17 R. 32 at p. 36, as "the natural and almost inevitable consequence" of the defender's action which was the foundation of the claim. When Lord Reid turns to state his own position, he does so on the basis that the intervening action was likely to happen. In Muir v. Glasgow Corporation the issue was whether the defender's manageress was negligent in allowing two members of a picnic party to bring a tea urn along a passage in her tea room without taking certain precautions. The damage in question, in that case, might therefore have arisen from the conduct of the two persons carrying the tea urn, who were not employees of the defenders nor in any way accountable to them. The test of liability set out by Lord Macmillan in Bourhill v. Young 1942 SC (HL) 78 , at p. 88, namely:

"The duty to take care is the duty to avoid doing or omitting to do anything the doing or omitting to do which may have as its reasonable and probable consequence injury to others, and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed"

(emphasis mine), was expressly used by Lord Thankerton and Lord Macmillan. Lord Wright said, 1943 SC (HL) 3 , at p. 16:

"As to negligence, the two men [who were carrying the urn] were not their [ i.e. the defenders'] servants. They were not responsible for their acts. That the men should be negligent in so simple an operation was not likely to happen. It was a mere possibility, not a reasonable probability. The men, if negligent, were, no doubt, responsible for their own negligence, but from the standpoint of the appellants the risk of negligence was a mere unlikely accident which no responsible person in [the manageress's] position could naturally be expected to foresee."

Lord Romer expressed it only slightly differently when he said, at p. 19:

"In my opinion, the appellants can only be fixed with liability if it can be shown that there materialised a risk that ought to have been within the appellants' reasonable contemplation."

Lord Clauson said, at p. 19:

"The crucial question in this matter appears to me to be whether [the manageress] ought as a reasonable woman to have had in contemplation that, unless some further precautions were taken, such an unfortunate occurrence as that which in fact took place might well be expected."

There is no hint that any special qualification fell to be introduced into the test in consequence of the urn being carried by two persons not in the employment of the defenders and for whom they would have no vicarious responsibility.

It is true, as has been pointed out by Oliver L.J. in Lamb v. Camden London B.C.

[1981] QB 625

, at p. 642, that human conduct is particularly unpredictable and

that every society will have a sprinkling of people who behave most abnormally. The result of this consideration, in my opinion, is that where the only possible source of the type of damage or injury which is in question is agency of a human being for whom the person against whom the claim is made has no responsibility, it may not be easy to find that as a reasonable person he was bound to anticipate that type of damage as a consequence of his act or omission. The more unpredictable the conduct in question, the less easy to affirm that any particular result from it is probable and in many circumstances the only way in which a judge could properly be persuaded to come to the conclusion that the result was not only possible but reasonably foreseeable as probable would be to convince him that, in the circumstances, it was highly likely. In this type of case a finding that the reasonable man should have anticipated the consequence of human action as just probable may not be a very frequent option. Unless the judge can be satisfied that the result of the human action is highly probable or very likely he may have to conclude that all that the reasonable man could say was that it was a mere possibility. Unless the needle that measures the probability of a particular result flowing from the conduct of a human agent is near the top of the scale it may be hard to conclude that it has risen sufficiently from the bottom to create the duty reasonably to foresee it.

In summary I conclude, in agreement with both counsel, that what the reasonable man is bound to foresee in a case involving injury or damage by independent human agency, just as in cases where such agency plays no part, is the probable consequences of his own act or omission, but that, in such a case, a clear basis will be required on which to assert that the injury or damage is more than a mere possibility. To illustrate, it is not necessary to go further than the decision of this House in Dorset Yacht Co. Ltd. v. Home Office where I consider that all the members of the majority found such a possible basis in the facts that the respondent's yacht was situated very close to the island on which the Borstal boys escaped from their custodians, that the only effective means of avoiding recapture was to escape by the use of some nearby vessel, and that the only means of providing themselves with the means to continue their journey was likely to be theft from such nearby vessels. These considerations so limited the options open to the escaping boys that it became highly probable that the boys would use, damage or steal from one or more of the vessels moored near the island.

The matter is further illustrated by Thomas Graham & Co. Ltd. v. Church of Scotland General Trs. , in which Sheriff Macvicar Q.C. found that the area in which the defenders' church lay was subject to vandalism on a large scale, that on an inspection of the church in which representatives of the owners of the church took part shortly before the final fire evidence existed of small fires having already been lit in its interior and that, on that inspection, the official reporting to the local authority concerned with public safety had reported that the building should be demolished since it constituted a serious fire hazard. Sheriff Macvicar concluded that by not taking the very obvious and inexpensive precaution of securing the side door of the church by which apparently access had been obtained the defenders had failed in their duty to take reasonable care for the safety of their neighbour's property. This decision appears to me to be in accordance with the decision of your Lordship's House in Sedleigh-Denfield v. O'Callaghan

[1940] AC 880

, establishing the occupier's liability with regard to a hazard created on his land by a trespasser, of which he has knowledge, when he fails to take reasonable

steps to remove it. On Sheriff Macvicar's findings, the empty church building constituted a serious fire hazard unless it were effectively secured against further trespass.

Before leaving cases relating to fires, I should mention Evans v. Glasgow D.C. and Carrick Furniture House Ltd. v. Paterson , already referred to as illustrations cited by senior counsel for the appellants of vandalism taking the form of wilful fire-raising. In the first of these, Evans , the defenders had demolished premises which adjoined the pursuer's premises which were also leased from the defenders, and in doing so had damaged the lock securing the pursuer's doors which had been replaced with inadequate locks. The pursuer suffered loss as a result of(1) theft of goods by the persons who broke the new and inadequate locks;

(2) fire caused by vandals dropping lighted material through gaps left by the defenders in floorboards above the pursuer's premises; and

(3) water which escaped from the defender's premises as a result of vandals interfering with the plumbing there. The case is reported at the stage of relevancy where the defenders were arguing that the pursuer's allegations, even if fully established, would not justify their claim. In these circumstances, Lord Wylie said, at p. 19. "[I]t seems to me that it would be entirely in accordance with principle to hold that in such circumstances there was a general duty on owners or occupiers of property, particularly property of the tenement type, where they chose to leave it vacant for any material length of time, to take reasonable care to see that it was proof against the kind of vandalism which was calculated to affect adjoining property."

I do not read Lord Wylie as there deciding that such a duty in the circumstances necessarily had been incumbent on the defenders. He was simply saying that principle would allow the claim and therefore it would not be right to sustain the defenders' submission. In my view that amounted only to a decision that depending on the facts as they emerged a duty of the scope alleged might be incumbent on owners or occupiers of such property in some circumstances that fell within the allegations made by the pursuer. Carrick Furniture which followed is explicable on the same ground. Counsel for Littlewoods founded on the decision in Fraser v. Glasgow Corporation 1972 S.C. 162, particularly a dictum of the Lord Justice-Clerk (Grant), at p. 173, but the circumstances in which he declined to hold an injury foreseeable were so different from those in the present case and so special that I find it of no assistance in this case.

I turn now to consider the cases in the Court of Appeal in England founded on by counsel for Littlewoods in support of his broad submission. The first of these, Lamb v. Camden London B.C. , was a decision that a workman damaging a water pipe with his pick in such a way that settlement was occasioned to the foundations of the plaintiff's house was not reasonably bound to foresee as a consequence of that for which he and his employers should be liable damage done to the plaintiff's house by squatters who obtained access because the house was not adequately secured against their entry when it was empty in order that repairs might be carried out. Both Lord Denning M.R. and Oliver L.J. dealt fully with the speech of Lord Reid in Dorset Yacht Co. Ltd. v. Home Office , to which I have already referred, and concluded that he was propounding "highly likely" as the degree of probability required before liability for the wrongful act of a third party could be established against a defendant. It will be apparent that my understanding of Lord Reid's speech, in its context, is somewhat different from theirs. While I do not consider that it is correct to base the decision in Lamb v. Camden London B.C.

on a proposition as a matter of policy that no wrongdoer could ever be liable for outrageous or anti-social conduct that had followed his wrongdoing and had contributed to the damage resulting therefrom, I respectfully and entirely agree with the result to which the Court of Appeal came in that case, and particularly with the reason for it expressed by Oliver L.J. where he said, at p. 643:

"I confess that I find it inconceivable that the reasonable man wielding his pick in the road in 1973 could be said reasonably to foresee that his puncturing of a water main would fill the plaintiffs' house with uninvited guests in 1974."

The next case referred to was P. Perl (Exporters) Ltd. v. Camden London B.C.

[1984] QB 342

, in which the plaintiffs were tenants of the defendants who used the basement of the demised premises in accordance with the terms of the lease for the storage of garments. The defendants were also the owners of the adjoining premises. These premises had a broken lock on the front door. Unauthorised persons were often seen on those premises and burglaries had also taken place there, but the defendants had done nothing about complaints regarding lack of security. During a weekend, intruders entered the basement of the premises adjoining the plaintiffs' premises, knocked a hole through the wall separating that basement from the plaintiffs' basement, and stole some knitwear belonging to the plaintiffs from their basement. The plaintiffs brought an action against the defendants claiming damages for negligence. The Court of Appeal held that the claim failed. Waller and Oliver L.JJ. held that, although it was a foreseeable possibility that thieves might gain access through the defendants' property to the plaintiffs' property, the defendants were not reasonably bound to foresee as the natural and probable consequence of their omission to secure their premises that persons over whom they had no control would steal the plaintiffs' goods. My noble and learned friend, Lord Goff of Chieveley, as Robert Goff L.J., gave the third judgment. He quoted, at p. 359, from Dixon J. in Smith v. Leurs (1945) 70 C.L.R. 256, at p. 262, a passage which was cited with approval in Dorset Yacht Co. Ltd. v. Home Office . The full passage, cited in Dorset , is at pp. 261–262:

"But, apart from vicarious responsibility, one man may be responsible to another for the harm done to the latter by a third person; he may be responsible on the ground that the act of the third person could not have taken place but for his own fault or breach of duty. There is more than one description of duty the breach of which may produce this consequence. For instance, it may be a duty of care in reference to things involving special danger. It may even be a duty of care with reference to the control of actions or conduct of the third person. It is, however, exceptional to find in the law a duty to control another's actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third. There are, however, special relations which are the source of a duty of this nature."

Robert Goff LJ. went on, at pp. 359–360:

"It is of course true that in the present case the plaintiffs do not allege that the defendants should have controlled the thieves who broke into their storeroom. But they do allege that the defendants should have exercised reasonable care to prevent them from gaining access through their own premises; and in my judgment the statement of principle by Dixon J. is equally apposite in such a case. I know of no case where it has been held, in the absence of a special relationship, that the defendant was liable in negligence for having failed to prevent a third party from wrongfully causing damage to the plaintiff."

Earlier he had made reference to Stansbie v. Troman [1948] 2 K.B. 48, in which a decorator who had

contracted to carry out work in the plaintiff's home went out for a time when no one else was in the house, leaving the door unsecured. In consequence, a thief entered and removed some of the plaintiff's property from the house and the plaintiff succeeded in recovering damages against the decorator. There was in that case no special relationship between the decorator and the thief although there was a contract between the decorator and the plaintiff. I should have thought that on the same facts, a guest of the plaintiff's who had left property in the house, if it had been stolen, might also have succeeded in recovering damages in respect of that theft from the decorator. That case proceeded on the basis that the decorator was liable because it was "as a direct result of his negligence that the thief entered by the front door" ( per Tucker L.J., at p. 52). I think it could be said that the purpose of the security arrangements at the door of the house was to prevent unlawful intrusion, that a reasonable man, in the decorator's position, would have secured the door, and that, on analysis, his reason for doing so would have been to prevent the consequence which he ought reasonably to have foreseen of unauthorised intrusion and theft from the house whose door it was. On the other hand, if the thief, instead of confining his attention to the house whose door it was, bored a hole through the wall into the house next door, and stole items from the adjoining proprietor, assuming that the first house was in a terrace of semi-detached, I consider that the decorator would not be liable in respect of the adjoining proprietor's loss, in the absence of circumstances from which this was shown to be reasonably foreseeable.

If the proprietor of the first house returned in time to find the thief boring a hole in the wall with the intention of effecting entry to the adjoining house, in the light of the decision in Sedleigh-Denfield v. O'Callaghan I consider that the first proprietor would be under a duty of care to the second proprietor to take what reasonable steps were open to him to cause the boring to cease. In some sense a thief who goes through one proprietor's property in order to reach the adjoining property of his neighbour creates a special relationship between himself and the first proprietor as a user of the first proprietor's land. In my opinion, therefore, the reason that in the circumstances of P. Perl (Exporters) Ltd. v. Camden London B.C. no duty was owed by the defendants to Perl was that the defendants were not bound as reasonable occupiers to foresee that, if they took no steps to improve the security of their property, a probable consequence of that was that thieves would first unlawfully enter their property and then, by making an opening in the dividing wall or otherwise, use the defendants' property to make an entry into the property of Perl for the purpose of stealing goods belonging to Perl. Although a duty to prevent a person from unlawfully entering my property may, in a sense, be described as a duty to control that person, I would not consider this a very natural use of the word "control". Control signifies, to my mind, a more extended relationship than would be involved in simply keeping another off my property. If this be right, the duty alleged by Perl to be incumbent on Camden was a duty falling under the earlier part of Dixon J.'s dictum , as giving rise to responsibility on the ground that the act of the thief could not have taken place but for the fault or breach of duty on the defendant but not to a duty of care with reference to the control of actions or conduct of the thief. Like Oliver L.J. in Perl , at p. 357 G, I would regard the mode of entry in question in that case to the plaintiffs' premises as a foreseeable possibility and no more, and in my view, that reasoning amply supports the decision of the Court of Appeal in Perl .

The somewhat analogous case of Squires v. Perth and Kinross D.C. , to which I have already referred, in the Second Division of the Court of Session, so far as it was based on the fact that the defending contractors, having by their work seriously reduced the security of the flat above the shop premises, failed to take adequate steps temporarily to secure it when they were absent, was decided by an application of what, in my opinion, was the correct test. Like Lord Dunpark, I have the greatest difficulty in seeing, in view of the mode of entry which the thief actually used, that the alleged breach of duty was in any way related to the particular manner in which the theft occurred.

The decision in Perl was applied in King v. Liverpool City Council [1986] 1 W.L.R. 890, in which the question of damage by vandals to property again arose. The plaintiff was the tenant of a flat in a block of flats owned by the defendant. When the flat immediately above the plaintiff's flat became vacant, she requested the defendant to board it up so as to secure it against intruders. The defendant took no effective steps to secure the upper flat and on three occasions vandals broke in and damaged water pipes in that flat allowing water to escape down into the plaintiff's flat where it caused damage. The plaintiff claimed damages against the defendant, alleging that it owed her a duty of care so to secure the vacant flat as to prevent vandals gaining access to it. The trial judge found that it would not have been possible to take effective steps in the situation disclosed in the evidence which could defeat the activities of vandals and dismissed the plaintiff's claim. The plaintiff apealed.

The Court of Appeal (Purchas and Nicholls L.JJ. and Caulfield J.) dismissed the appeal. After referring to a number of authorities, Purchas L.J. said, at p. 901:

"The judge's finding is, in my judgment, determinative of this appeal. Summarizing his judgment, he said:

‘Regrettably … I find that it is not possible for effective steps to be taken in a situation like this which could defeat the activities of vandals.’

Whether this finding, together with the established circumstances of the council, should operate to restrict the ambit of the duty to take any positive steps to secure the property, or duty arising in relation to an omission to take such steps; or whether it operates to break the chain of causation, may, as Robert Goff L.J. suggested in [the] passage which I have just cited from Paterson Zochonis Ltd. v. Merfarken Packaging Ltd. [1983] F.S.R. 273, 299, not be essentially material. Personally I prefer the former approach and would limit the area of the duty itself in the circumstances prevailing in this case. In either event, in my judgment the judge was right to hold that the council owed no duty to the plaintiff in respect of the acts of the vandals in this case and accordingly I would dismiss this appeal."

Nicholls L.J. agreed but added, in relation to an argument for the plaintiff that King's case was to be distinguished from Perl's case, at pp. 901–902:

"I am unable to accept that any material ground of distinction exists between the two cases. In P. Perl (Exporters) Ltd. v. Camden London B.C. , as in the instant case, the plaintiff sought to make the defendant occupier liable in negligence for the wrongdoing of a third party. In his judgment Robert Goff L.J. set out, at p. 359 … some examples of circumstances where there may be liability for a third party's wrongdoing, and concluded that those instances were very different from that case where, as in the present case, the allegation was that the defendant failed to exercise reasonable care to prevent a third party from causing damage to the plaintiff. In his preface to that passage Robert Goff L.J. assumed that there might well be cases where the occupier could reasonably foresee that

thieves might use the unprotected property as a means of access to neighbouring property. But he, in common with the other members of the court, rejected the existence of the broad duty of care contended for by the plaintiff's counsel, and his conclusion was to the effect that in the absence of a special relationship, there was no duty to prevent thieves from so using one's property. I cannot see any distinction in principle between a case where the damage arises from the third party using the defendant's property as a means of obtaining unauthorised access to the plaintiff's property and there committing theft, and one where the damage arises from the third party so conducting himself on the defendant's property as to damage the plaintiff's property by causing water to escape from the former property to the latter. Nor can I see that it is material that the defendant had a responsibility to take reasonable steps to prevent the escape from its property of water in an ordinary domestic water system. I do not consider that there is a greater responsibility on the defendant because the third party caused damage by creating an escape of water than if the damage had been caused by the third party lighting a fire on the defendant's property or, if the defendant's property had been on the top floor of the building, by the third party stripping lead from the roof and thereby permitting rain to enter and eventually to reach and damage the plaintiff's property."

Caulfield J. agreed with both judgments.

The conclusion of fact that no effective precautions on the lines suggested by the plaintiff could be taken by the defendant to prevent the damage suffered by the plaintiff was amply sufficient to justify the conclusion reached by the Court of Appeal in King v. Liverpool City Council . Leave to appeal to this House from the decision was refused to the plaintiff.

However, while it may well be true that no distinction of legal principle falls to be made between the various cases referred to by Nicholls L.J., I consider that there may be important differences in the facts which could justify different results.

Cases of theft where the thief uses a neighbour's premises to gain access to the premises of the owner of the stolen goods are, in my opinion, in an important respect different from cases of fire such as that with which your Lordships are concerned in the present appeal. In the case of fire, a hazard is created on the first occupier's premises and it is that hazard which operating from the first occupier's premises creates danger to the neighbouring properties. As I have said, even although that hazard is created by the act of a trespasser on the first premises the occupier of these premises, once he knows of the physical facts giving rise to the hazard, has a duty to take reasonable care to prevent the hazard causing damage to neighbouring properties. In the ordinary case of theft where the thief uses the first proprietor's property only as an access to the property of the person from whom the stolen property is taken there is no similar hazard on the first proprietor's land which causes the damage to the neighbouring property. Success of the theft depends very much on its mode and occasion being unexpected. The only danger consists in the thief or thieves who, having passed from trespassing on the first proprietor's property, go on to trespass on his neighbour's. There is also a sense in which neighbouring proprietors can, independently, take action to protect themselves against theft in a way that is not possible with fire. Once the fire had taken hold on Littlewoods's building, St. Paul's proprietors could not be expected to take effective steps to prevent sparks being showered over on their property. On the other hand, in the jewellery case ( Squires v. Perth and Kinross D.C. )

there was no reason why the pursuers if they had anticipated the risk of theft as sufficiently serious should not have had a burglar alarm which would prove effective to warn of burglars whatever their mode of entry although this would not, of itself, prevent their entry.

Where the question is whether or not the duty to take a particular precaution is incumbent on a defendant, the probability of the risk emerging is not the only consideration, as was pointed out by Lord Reid giving the opinion of the board in Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty.

[1967] 1 AC 617

. In reference to Bolton v. Stone Lord Reid said, at pp. 642–643:

"The House of Lords held that the risk was so small that in the circumstances a reasonable man would have been justified in disregarding it and taking no steps to eliminate it. But it does not follow that, no matter what the circumstances may be, it is justifiable to neglect a risk of such a small magnitude. A reasonable man would only neglect such a risk if he had some valid reason for doing so, e.g. , that it would involve considerable expense to eliminate the risk. He would weigh the risk against the difficulty of eliminating it. If the activity which caused the injury to Miss Stone had been an unalwful activity, there can be little doubt but that Bolton v. Stone would have been decided differently. In their Lordships' judgment Bolton v. Stone did not alter the general principle that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. What that decision did was to recognise and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it."

In my opinion this observation demonstrates that when the word "probable" is used in this context in the authorities, it is used as indicating a real risk as distinct from a mere possibility of danger. It is not used in the sense that the consequence must be more probable than not to happen before it can be reasonably foreseeable. And again, in Goldman v. Hargrave

[1967] 1 AC 645

, Lord Wilberforce giving the opinion of the board, referring to a number of textbooks as well as an article by Dr. A. L. Goodhart, said, at pp. 662–663:

"All of these endorse the development which their Lordships find in the decisions, towards a measured duty of care by occupiers to remove or reduce hazards to their neighbours. So far it has been possible to consider the existence of a duty, in general terms. But the matter cannot be left there without some definition of the scope of his duty. How far does it go? What is the standard of the effort required? What is the position as regards expenditure? Is it not enough to say merely that these must be ‘reasonable’, since what is reasonable to one man may be very unreasonable, and indeed ruinous, to another: the law must take account of the fact that the occupier on whom the duty is cast has, ex hypothesi , had this hazard thrust upon him through no seeking or fault of his own. His interest, and his resources, whether physical or material, may be of a very modest character either in relation to the magnitude of the hazard, or as compared with those of his threatened neighbour. A rule which required of him in such unsought circumstances in his neighbour's interest a physical effort of which he is not capable, or an excessive expenditure of money, would be unenforceable or unjust. One may say in general terms that the existence of a duty must be based upon knowledge of the hazard, ability to foresee the consequences of not checking or removing it, and the ability to abate

it. And in many cases, as, for example, in Scrutton L.J.'s hypothetical case of stamping out a fire, or the present case, where the hazard could have been removed with little effort and no expenditure, no problem arises. But other cases may not be so simple. In such situations the standard ought to be to require of the occupier what it is reasonable to expect of him in his individual circumstances. Thus, less must be expected of the infirm than of the able-bodied: the owner of a small property where a hazard arises which threatens a neighbour with substantial interests should not have to do so much as one with larger interests of his own at stake and greater resources to protect them: if the small owner does what he can and promptly calls on his neighbour to provide additional resources, he may be held to have done his duty: he should not be liable unless it is clearly proved that he could, and reasonably in his individual circumstance should, have done more."

My Lords,

I think it is well to remember as Lord Radcliffe pointed out in Bolton v. Stone ([1951] A.C.) at pp. 868–869:

"[A] breach of duty has taken place if they show the appellants guilty of a failure to take reasonable care to prevent the accident. One may phrase it as ‘reasonable care’ or ‘ordinary care’ or ‘proper care’—all these phrases are to be found in decisions of authority—but the fact remains that, unless there has been something which a reasonable man would blame as falling beneath the standard of conduct that he would set for himself and require of his neighbour, there has been no breach of legal duty."

This is the fundamental principle and in my opinion various factors will be taken into account by the reasonable man in considering cases involving fire on the one hand and theft on the other but since this is the principle the precise weight to be given to these factors in any particular case will depend upon the circumstances and rigid distinctions cannot be made between one type of hazard and another. I consider that much must depend on what the evidence shows is done by ordinary people in like circumstances to those in which the claim of breach of duty arises.

In my view, if the test of the standard of the reasonable man is applied to the steps an occupier of property must take to protect neighbouring properties from the hazard of fire arising on his property no further consideration of policy arises that should lessen the responsibility of the occupier in a case such as this.

Senior counsel for Littlewoods' broad submission does not therefore add anything to his narrow submission in the circumstances of this case since, in my opinion, no undue burdens are put upon property occupiers by the application of the principle of Donoghue v. Stevenson nor is there any undue interference with the freedom of a person to use his property as he pleases.

In my opinion, these appeals should be refused and the interlocutors of the First Division affirmed. The appellants must pay Littlewoods' costs of the appeals.

LORD GOFF OF CHIEVELEY .—My Lords, the Lord President (Lord Emslie) founded his judgment on the proposition that the defenders, who were both owners and occupiers of the cinema, were under a general duty to take reasonable care for the safety of premises in the neighbourhood.

Now if this proposition is understood as relating to a general duty to take reasonable care not to cause damage to premises in the neighbourhood (as I believe that the Lord President intended it to be understood) then it is unexceptionable. But it must not be overlooked that a problem arises when the pursuer is seeking

to hold the defender responsible for having failed to prevent a third party from causing damage to the pursuer or his property by the third party's own deliberate wrongdoing. In such a case, it is not possible to invoke a general duty of care; for it is well recognised that there is no general duty of care to prevent third parties from causing such damage. The point is expressed very clearly in Hart and Honore, Causation in the Law , 2nd edn. (1985), when the authors state, at pp. 196–197:

"The law might acknowledge a general principle that, whenever the harmful conduct of another is reasonably foreseeable, it is our duty to take precautions against it. … But, up to now, no legal system has gone so far as this."

The same point is made in Fleming, The Law of Torts , 6th edn. (1983), where it is said, at p. 200:

"[T]here is certainly no general duty to protect others against theft or loss."

I wish to add that no such general duty exists even between those who are neighbours in the sense of being occupiers of adjoining premises. There is no general duty upon a householder that he should act as a watchdog, or that his house should act as a bastion, to protect his neighbour's house.

Why does the law not recognise a general duty of care to prevent others from suffering loss or damage caused by the deliberate wrongdoing of third parties? The fundamental reason is that the common law does not impose liability for what are called pure omissions. If authority is needed for this proposition, it is to be found in the speech of Lord Diplock in Dorset Yacht Co. Ltd. v. Home Office

[1970] AC 1004

, where he said, at p. 1060:

"The very parable of the good Samaritan (Luke 10, v. 30) which was evoked by Lord Atkin in Donoghue v. Stevenson 1932 SC (HL) 31 illustrates, in the conduct of the priest and of the Levite who passed by on the other side, an omission which was likely to have as its reasonable and probable consequence damage to the health of the victim of the thieves, but for which the priest and Levite would have incurred no civil liability in English law."

Lord Diplock then proceeded to give examples which show that, carried to extremes, this proposition may be repugnant to modern thinking. It may therefore require one day to be reconsidered, especially as it is said to provoke an "invidious comparison with affirmative duties of good-neighbourliness in most countries outside the common law orbit" (see Fleming, The Law of Torts , 6th edn., p. 138). But it is of interest to observe that, even if we do follow the example of those countries, in all probability we will, like them, impose strict limits upon any such affirmative duty as may be recognised. In one recent French decision, the condition was imposed that the danger to the claimant must be "grave, imminent, constant … nécessitant une intervention immédiate ," and that such an intervention must not involve any " risque pour le prévenu ou pour un tiers ": see Lawson and Markesinis, Tortious liability for unintentional harm in the Common law and the Civil law (1982), vol. I, pp. 74–75. The latter requirement is consistent with our own law, which likewise imposes limits upon steps required to be taken by a person who is under an affirmative duty to prevent harm being caused by a source of danger which has arisen without his fault (see Goldman v. Hargrave

[1967] 1 AC 645

), a point to which I shall return later. But the former requirement indicates that any affirmative duty to prevent deliberate wrongdoing by third parties, if recognised in English law, is likely to be strictly limited. I mention this because I think it important that we should realise that problems like that in the present case are unlikely to be solved by a simple abandonment of the common law's present strict approach to liability for pure omissions.

Another statement of principle, which has been much quoted, is the observation

of Lord Sumner in Weld-Blundell v. Stephens [1920] A.C. 956, when he said, at p. 986:

"In general … even though A is in fault, he is not responsible for injury to C which B, a stranger to him, deliberately chooses to do."

This dictum may be read as expressing the general idea that the voluntary act of another, independent of the defender's fault, is regarded as a novus actus interveniens which, to use the old metaphor, "breaks the chain of causation." But it also expresses a general perception that we ought not to be held responsible in law for the deliberate wrongdoing of others. Of course, if a duty of care is imposed to guard against deliberate wrongdoing by others, it can hardly be said that the harmful effects of such wrongdoing are not caused by such breach of duty. We are therefore thrown back to the duty of care. But one thing is clear, and that is that liability in negligence for harm caused by the deliberate wrongdoing of others cannot be founded simply upon foreseeability that the pursuer will suffer loss or damage by reason of such wrongdoing. There is no such general principle. We have therefore to identify the circumstances in which such liability may be imposed.

That there are special circumstances in which a defender may be held responsible in law for injuries suffered by the pursuer through a third party's deliberate wrongdoing is not in doubt. For example, a duty of care may arise from a relationship between the parties, which gives rise to an imposition or assumption of responsibility upon or by the defender, as in Stansbie v. Troman [1948] 2 K.B. 48, where such responsibility was held to arise from a contract. In that case a decorator, left alone on the premises by the householder's wife, was held liable when he went out leaving the door on the latch, and a thief entered the house and stole property. Such responsibility might well be held to exist in other cases where there is no contract, as for example where a person left alone in a house has entered as a licensee of the occupier. Again, the defender may be vicariously liable for the third party's act; or he may be held liable as an occupier to a visitor on his land. Again, as appears from the dictum of Dixon J. in Smith v. Leurs (1945) 70 C.L.R. 256, at p. 262, a duty may arise from a special relationship between the defender and the third party, by virtue of which the defender is responsible for controlling the third party: see, for example, Dorset Yacht Co. Ltd. v. Home Office . More pertinently, in a case between adjoining occupiers of land, there may be liability in nuisance if one occupier causes or permits persons to gather on his land, and they impair his neighbour's enjoyment of his land. Indeed, even if such persons come on to his land as trespassers, the occupier may, if they constitute a nuisance, be under an affirmative duty to abate the nuisance. As I pointed out in P. Perl (Exporters) Ltd. v. Camden London B.C.

[1984] QB 342

at p. 359, there may well be other cases.

These are all special cases. But there is a more general circumstance in which a defender may be held liable in negligence to the pursuer, although the immediate cause of the damage suffered by the pursuer is the deliberate wrongdoing of another. This may occur where the defender negligently causes or permits to be created a source of danger, and it is reasonably foreseeable that third parties may interfere with it and, sparking off the danger, thereby cause damage to persons in the position of the pursuer. The classic example of such a case is, perhaps, Haynes v. Harwood [1935] 1 K.B. 146, where the defendant's carter left a horse-drawn van unattended in a crowded street, and the horses bolted when a boy threw a stone at them. A police officer who suffered injury in stopping the horses before they injured a woman and children was held to be

entitled to recover damages from the defendant. There, of course, the defendant's servant had created a source of danger by leaving his horses unattended in a busy street. Many different things might have caused them to bolt—a sudden noise or movement, for example, or, as happened, the deliberate action of a mischievous boy. But all such events were examples of the very sort of thing which the defendant's servant ought reasonably to have foreseen and to have guarded against by taking appropriate precautions. In such a case, Lord Sumner's dictum ( Weld-Blundell v. Stephens at p. 986) can have no application to exclude liability.

Haynes v. Harwood was a case concerned with the creation of a source of danger in a public place. We are concerned in the present case with an allegation that the defenders should be held liable for the consequences of deliberate wrongdoing by others who were trespassers on the defenders' property. In such a case it may be said that the defenders are entitled to use their property as their own and so should not be held liable if, for example, trespassers interfere with dangerous things on their land. But this is, I consider, too sweeping a proposition. It is well established that an occupier of land may be liable to a trespasser who has suffered injury on his land; though in Herrington v. British Railways Board

[1972] AC 877

, in which the nature and scope of such liability was reconsidered by your Lordships' House, the standard of care so imposed on occupiers was drawn narrowly so as to take proper account of the rights of occupiers to enjoy the use of their land. It is, in my opinion, consistent with the existence of such liability that an occupier who negligently causes or permits a source of danger to be created on his land, and can reasonably foresee that third parties may trespass on his land and, interfering with the source of danger, may spark it off, thereby causing damage to the person or property of those in the vicinity, should be held liable to such a person for damage so caused to him. It is useful to take the example of a fire hazard, not only because that is the relevant hazard which is alleged to have existed in the present case, but also because of the intrinsically dangerous nature of fire hazards as regards neighbouring property. Let me give an example of circumstances in which an occupier of land might be held liable for damage so caused. Suppose that a person is deputed to buy a substantial quantity of fireworks for a village fireworks display on Guy Fawkes night. He stores them, as usual, in an unlocked garden shed abutting onto a neighbouring house. It is well known that he does this. Mischievous boys from the village enter as trespassers and, playing with the fireworks, cause a serious fire which spreads to and burns down the neighbouring house. Liability might well be imposed in such a case; for, having regard to the dangerous and tempting nature of fireworks, interference by naughty children was the very thing which, in the circumstances, the purchaser of the fireworks ought to have guarded against.

But liability should only be imposed under this principle in cases where the defender has negligently caused or permitted the creation of a source of danger on his land, and where it is foreseeable that third parties may trespass on his land and spark it off, thereby damaging the pursuer or his property. Moreover it is not to be forgotten that, in ordinary households in this country, there are nowadays many things which might be described as possible sources of fire if interfered with by third parties, ranging from matches and firelighters to electric irons and gas cookers and even oil-fired central heating systems. These are commonplaces of modern life; and it would be quite wrong if householders were to be held liable in negligence for acting in a socially acceptable manner. No doubt the question

whether liability should be imposed on defenders in a case where a source of danger on his land has been sparked off by the deliberate wrongdoing of a third party is a question to be decided on the facts of each case, and it would, I think, be wrong for your Lordships' House to anticipate the manner in which the law may develop: but I cannot help thinking that cases where liability will be so imposed are likely to be very rare.

There is another basis upon which a defender may be held liable for damage to neighbouring property caused by a fire started on his (the defender's) property by the deliberate wrongdoing of a third party. This arises where he has knowledge or means of knowledge that a third party has created or is creating a risk of fire, or indeed has started a fire, on his premises, and then fails to take such steps as are reasonably open to him (in the limited sense explained by Lord Wilberforce in Goldman v. Hargrave at pp. 663–664) to prevent any such fire from damaging neighbouring property. If, for example, an occupier of property has knowledge, or means of knowledge, that intruders are in the habit of trespassing upon his property and starting fires there, thereby creating a risk that fire may spread to and damage neighbouring property, a duty to take reasonable steps to prevent such damage may be held to fall upon him. He could, for example, take reasonable steps to keep the intruders out. He could also inform the police; or he could warn his neighbours and invite their assistance. If the defender is a person of substantial means, for example a large public company, he might even be expected to employ some agency to keep a watch on the premises. What is reasonably required would, of course, depend on the particular facts of the case. I observe that, in Goldman v. Hargrave , such liability was held to sound in nuisance; but it is difficult to believe that, in this respect, there can be any material distinction between liability in nuisance and liability in negligence.

I turn to the authorities. Your Lordships were referred in the course of argument to two Scottish cases concerned with fire hazards. The first was Carrick Furniture House Ltd. v. Paterson 1978 S.L.T. (Notes) 48. In that case, in allowing proof before answer, the Lord Ordinary (Allanbridge) founded upon the facts that the building in question, which contained considerable quantities of inflammable material, constituted a fire hazard, and that the risk of a vandal setting fire to the premises was not too remote. The case is only briefly reported; but it provides an indication that cases of this kind cannot normally be disposed of on a plea to the relevancy, but have to be allowed to go to proof. In the second case, Thomas Graham & Co. Ltd. v. Church of Scotland General Trs. 1982 S.L.T. (Sh. Ct.) 26, Sheriff Macvicar Q.C. held that the defenders, who were occupiers of a disused church, were liable to the pursuers whose neighbouring property suffered damage by reason of a fire started in the church by unknown vandals. He relied ( inter alia ) on the facts that the church was situated in an area of Glasgow which was subject to vandalism on a large scale; that, to the knowledge of the defenders, on a number of previous occasions vandals had entered the church and caused damage there; that the vandals had also lit small fires in the church, and that a responsible inspector had expressed the opinion that the building was a serious fire hazard; that there was no evidence that the defenders, or anyone on their behalf, had applied their minds to the question of fire hazard, and that there was ample evidence to support the view that, if they had, and had taken advice on the matter, they would have been told that the building was a serious fire risk; and that, for two months before the fire, the building was not lockfast. I incline to the opinion

that this case can best be classified under the second of the two heads of liability to which I have referred, on the basis that the defenders had the means of knowledge that a risk of fire had been created or was being created by third parties on their land, and yet did nothing to prevent such risk of fire from damaging neighbouring property. The leading Commonwealth case in which an occupier of land was held liable for damage caused to his neighbour's property by a fire which started on his own land without his fault (when lightning struck a tall tree), and which he negligently failed to prevent from spreading onto his neighbour's land, is Goldman v. Hargrave itself. But a case more similar to the two Scottish cases to which I have referred is perhaps the American case of Torrack v. Corpamerica Inc. (1958) 144 A.2d 703, where it was alleged that the defendant's derelict property was frequented by children and vagrants and had been condemned by the fire marshal as a fire menace, and that thereafter a fire was deliberately started by a third person on the property which spread to and damaged the plaintiff's neighbouring property; there the defendant's motion for summary judgment was denied. In so deciding, Judge Christie relied on earlier cases to the same effect, viz. Prince v. Chehalis Savings & Loan Association (1936) 186 Wash. 372; 58 P.2d 290; 61 P.2d 1374, and Arneil v. Schnitzer (1944) 173 Or. 179; 144 P.2d 707.

Turning to the facts of the present case, I cannot see that the defenders should be held liable under either of these two possible heads of liability. First, I do not consider that the empty cinema could properly be described as an unusual danger in the nature of a fire hazard. As the Lord President (Lord Emslie) pointed out, ( supra at p. 46):

"There was nothing about the building, so far as we know from the evidence, to suggest that it could easily be set alight."

This conclusion was, in my judgment, entirely justified on the evidence in the case; and it is, I consider, fatal to any allegation that the defenders should be held liable on the ground that they negligently caused or permitted the creation of an unusual source of danger in the nature of a fire hazard.

Nor can I see that the defenders should be held liable for having failed to take reasonable steps to abate a fire risk created by third parties on their property without their fault. If there was any such fire risk, they had no means of knowing that it existed. If anybody (for example, the police) considered that there was such a risk, they could and should have contacted the defenders (a well-known public company, whose particulars were given on a notice outside the cinema) by telephone to warn them of the situation; but they did not do so. But in any event, on the evidence, the existence of such a risk was not established. As the Lord President observed ( supra at p. 46):

"It is, in my opinion, significant that no witness who spoke about the increasing use of the cinema by intruding children—and the witnesses included the minister of St. Paul's Church, the session clerk and the beadle, and also Mr Maloco—reported to the police or the defenders what they had observed. If it had crossed their minds that it was likely that the children would set fire to the building and put neighbouring properties at risk, it is inconceivable that they would not have taken immediate steps, by reporting to the police and the defenders, to bring the use of the premises by children to an end. My experience of life, which I am entitled to bring to bear as a juryman would, has not taught me that empty buildings, to which vandals gain access, are likely to be set on fire by them."

In the course of his argument before your Lordships, senior counsel for the

appellants placed reliance upon the decision of the Inner House of the Court of Session in Squires v. Perth and Kinross D.C. 1985 SC 297 . That was a case concerned not with liability in respect of a fire hazard, but with liability in respect of a theft by a burglar who had gained access to the pursuer's jeweller's shop through a flat above which was empty because it was being renovated by building contractors who were held to be in occupation of the flat. It was held that the contractors, as occupiers, were liable in negligence to the pursuers for the loss of the jewellery stolen from the shop, on the ground that any person in occupancy and control of the flat above would have readily foreseen the likelihood of what in fact occurred. It appears that the fact that the flat above was empty was plainly apparent from, in particular, the presence of scaffolding at the front of the building; and complaints had been made on a number of occasions that the contractors did not keep the flat secure, for example, because windows were left open and unglazed to accommodate scaffolding. It was a remarkable feature of the case that the burglar himself, one Sneddon, gave evidence at the trial; and it transpired from his evidence that, although his attention was drawn to the possibility of breaking into the jeweller's shop through the empty flat by seeing the scaffolding and open windows of the flat facing the High Street, he in fact approached the flat from behind, climbing over a building of about 12 to 15 feet high overall. He found the door into the yard behind the shop and flat unsecured, but nevertheless climbed over a wall into the yard and then climbed a drainpipe to a balcony, from which he entered the flat through a door which was open. Having entered the flat, he broke into the jeweller's shop through the floor of the flat and the ceiling of the shop. In these circumstances, assuming that the defenders were in breach of duty in leaving the flat insecure, I feel, with all respect, serious doubts about the decision on the issue of causation, since it is difficut to imagine that an experienced and practised housebreaker, as Sneddon was held to be, would have been deterred from entering the flat even if the door on the balcony had been secured. I am not surprised therefore to find that Lord Dunpark shared the same doubts: see p. 316. Furthermore, I find it difficult to understand why the question of contributory negligence on the part of the pursuers was not considered. The pursuers were just as aware of the risk as the defenders were; yet, although (as was found) an alarm system is often fitted to the roof of premises such as those of the pursuers, and is relatively inexpensive, they did not take this precaution. They seem to have assumed that, although it was their shop which was likely to attract thieves, they were entitled to rely on the contractors working above, rather than upon themselves, to prevent thieves entering through the ceiling of the shop. Indeed if it had been thought appropriate, in the circumstances, to employ a watchman to guard the jeweller's shop, the pursuers would apparently have considered that that expense should fall not upon themselves but upon the contractors working above. I do not think that that can be right.

In truth the case raises a more fundamental question, which is whether an occupier is under a general duty of care to occupiers of adjacent premises to keep his premises lockfast in order to prevent thieves entering his premises and thereby gaining access to the adjacent premises. Let us suppose that, in Squires v. Perth and Kinross D.C. , the defenders had expressly warned the pursuers, by notice, that extensive work was going to be done to the flat above, and that this would mean that, for a period of time, scaffolding would be erected and all the

windows of the flat would be removed. Would it then be objectionable that the pursuers should have to look to their own defences against thieves, in the light of these circumstances? I do not think so. Then, should it make any difference that no such notice was given, but it was obvious what the contractors were doing? Again, I do not think so. Then, suppose that the occupiers of the flat above the shop were an ordinary family and, when they went away on holiday, in all the hustle and bustle of getting their children and animals and possessions into their car, they forgot to lock their front door. While they were away a passing thief, seeing that the flat was unoccupied because the curtains were drawn, went up and tried the front door and, finding it unlocked, gained access to the flat and thence entered the jeweller's shop below and robbed it. Should the occupiers of the flat be held liable to the jewellers in negligence? Again, I do not think so; and I add that I do not think that it would make any difference that it was well known that burglars were operating in the neighbourhood. It is not difficult to multiply these homely examples of cases where a thief may gain access to a house or flat which is not lockfast—for example, where an old lady goes out to spend the day with her married daughter and leaves a ground floor window open for her cat; or where a stone—deaf asthmatic habitually sleeps with his bedroom window wide open at night; or where an elderly gentleman leaves his french windows open when he is weeding at the bottom of his garden, so that he can hear the telephone. For my part, I do not think that liability can be imposed on an occupier of property in negligence simply because it can be said that it is reasonably foreseeable, or even (having regard, for example, to some particular temptation to thieves in adjacent premises) that it is highly likely, that, if he fails to keep his property lockfast, a thief may gain access to his property and thence to the adjacent premises. So to hold must presuppose that the occupier of property is under a general duty to prevent thieves from entering his property to gain access to neighbouring property, where there is a sufficient degree of foresight that this may occur. But there is no general duty to prevent third parties from causing damage to others, even though there is a high degree of foresight that they may do so. The practical effect is that everybody has to take such steps as he thinks fit to protect his own property, whether house or flat or shop, against thieves. He is able to take his own precautions; and, in deciding what precautions to take, he can and should take into account the fact that, in the ordinary course of life, adjacent property is likely to be from time to time unoccupied (often obviously so, and sometimes for a considerable period of time) and is also likely from time to time not to be lockfast. He has to form his own judgment as to the precautions which he should take, having regard to all the circumstances of the case, including (if it be the case) the fact that his premises are a jeweller's shop which offers a special temptation to thieves. I must confess that I do not find this practical result objectionable. For these reasons I consider, with all respect, that Squires v. Perth and Kinross D.C. was wrongly decided.

The present case is, of course, concerned with entry not by thieves but by vandals. Here the point can be made that, whereas an occupier of property can take precautions against thieves, he cannot (apart from insuring his property and its contents) take effective precautions against physical damage caused to his property by a vandal who has gained access to adjacent property and has there created a source of danger which has resulted in damage to his property by, for example, fire or escaping water. Even so, the same difficulty arises. Suppose, taking the example I have given of the family going away on holiday and leaving

their front door unlocked, it was not a thief but a vandal who took advantage of that fact; and that the vandal, in wrecking the flat, caused damage to the plumbing which resulted in a water leak and consequent damage to the shop below. Are the occupiers of the flat to be held liable in negligence for such damage? I do not think so, even though it may be well known that vandalism is prevalent in the neighbourhood. The reason is the same, that there is no general duty to prevent third parties from causing damage to others, even though there is a high degree of foresight that this may occur. In the example I have given, it cannot be said that the occupiers of the flat have caused or permitted the creation of a source of danger (as in Haynes v. Harwood , or in the example of the fireworks which I gave earlier) which they ought to have guarded against; nor of course were there any special circumstances giving rise to a duty of care. The practical effect is that it is the owner of the damaged premises (or, in the vast majority of cases, his insurers) who is left with a worthless claim against the vandal, rather than the occupier of the property which the vandal entered (or his insurers)—a conclusion which I find less objectionable than the one which may throw an unreasonable burden upon ordinary householders. For these reasons, I consider that both Lamb v. Camden London B.C.

[1981] QB 625

and King v. Liverpool City Council [1986] 1 W.L.R. 890 were rightly decided; but I feel bound to say, with all respect, that the principle propounded by Lord Wylie in Evans v. Glasgow D.C. 1978 S.L.T. 17 at p. 19, viz. that there is "a general duty on owners or occupiers of property … to take reasonable care to see that it [is] proof against the kind of vandalism which was calculated to affect adjoining property," is, in my opinion, too wide.

I wish to emphasise that I do not think that the problem in these cases can be solved simply through the mechanism of foreseeability. When a duty is cast upon a person to take precautions against the wrongdoing of third parties, the ordinary standard of foreseeability applies; and so the possibility of such wrongdoing does not have to be very great before liability is imposed. I do not myself subscribe to the opinion that liability for the wrongdoing of others is limited because of the unpredictability of human conduct. So, for example, in Haynes v. Harwood liability was imposed although it cannot have been at all likely that a small boy would throw a stone at the horses left unattended in the public road; and in Stansbie v. Troman , liability was imposed although it cannot have been at all likely that a thief would take advantage of the fact that the defendant left the door on the latch while he was out. Per contra , there is at present no general duty at common law to prevent persons from harming others by their deliberate wrongdoing, however foreseeable such harm may be if the defender does not take steps to prevent it.

Of course, if persons trespass upon the defender's property and the defender either knows or has the means of knowing that they are doing so and that in doing so they constitute a danger to neighbouring property, then the defender may be under an affirmative duty to take reasonable steps to exclude them, in the limited sense explained by Lord Wilberforce in Goldman v. Hargrave at pp. 663–664; but that is another matter. I incline to the opinion that this duty arises from the fact that the defender, as occupier, is in exclusive control of the premises upon which the danger has arisen.

In preparing this opinion, I have given careful consideration to the question whether P. Perl (Exporters) Ltd. v. Camden London B.C. , in which I myself was a member of the Court of Appeal, was correctly decided. I have come to the conclusion that it was, though on re-reading it I do not think that my own judgment was very well expressed. But I remain of the opinion that to impose a

general duty on occupiers to take reasonable care to prevent others from entering their property would impose an unreasonable burden on ordinary householders and an unreasonable curb upon the ordinary enjoyment of their property; and I am also of the opinion that to do so would be contrary to principle. It is very tempting to try to solve all problems of negligence by reference to an all-embracing criterion of foreseeability, thereby effectively reducing all decisions in this field to questions of fact. But this comfortable solution is, alas, not open to us. The law has to accommodate all the untidy complexity of life; and there are circumstances where considerations of practical justice impel us to reject a general imposition of liability for foreseeable damage. An example of this phenomenon is to be found in cases of pure economic loss, where the so-called "floodgates" argument (an argument recognised by Blackburn J. as long ago as 1875 in Cattle v. Stockton Waterworks Co. (1875) LR 10 QB 453 at p. 457, the force of which is accepted not only in common law countries but also in civil law countries such as the Federal Republic of Germany) compels us to recognise that to impose a general liability based on a simple criterion of foreseeability would impose an intolerable burden upon defendants. I observe that in Junior Books Ltd. v. Veitchi Co. Ltd. 1982 SC (HL) 244 some members of your Lordships' House succumbed, perhaps too easily, to the temptation to adopt a solution based simply upon "proximity". In truth, in cases such as these, having rejected the generalised principle, we have to search for special cases in which, upon narrower but still identifiable principles, liability can properly be imposed. That is the task which I attempted to perform in Leigh and Sillivan Ltd. v. Aliakmon Shipping Co. Ltd. [1985] Q.B. 350, by identifying a principle of transferred loss—a principle which has not, so far, achieved recognition by other members of your Lordships' House. As the present case shows, another example of this phenomenon is to be found in cases where the plaintiff has suffered damage through the deliberate wrongdoing of a third party; and it is not surprising that once again we should find the courts seeking to identify specific situations in which liability can properly be imposed. Problems such as these are solved in Scotland, as in England, by means of the mechanism of the duty of care; though we have nowadays to appreciate that the broad general principle of liability for foreseeable damage is so widely applicable that the function of the duty of care is not so much to identify cases where liability is imposed as to identify those where it is not (see Anns v. Merton London B.C.

[1978] AC 728

at p. 752, by Lord Wilberforce). It is perhaps not surprising that our brother lawyers in France find themselves able to dispense with any such concept, achieving practical justice by means of a simple concept of "faute". But since we all live in the same social and economic environment, and since the judicial function can, I believe, be epitomised as an educated reflex to facts, we find that, in civil law countries as in common law countries, not only are we beset by the same practical problems, but broadly speaking we reach the same practical solutions. Our legal concepts may be different, and may cause us sometimes to diverge; but we have much to learn from each other in our common efforts to achieve practical justice founded upon legal principle.

For these reasons I would dismiss these appeals.

Cited in 1 later judgment

Abeer Mohammad Shamsan v 44-49 Lowndes Square Management Company Limited 2024