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England and Wales High Court (Technology and Construction Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Rushbond Plc v The J S Design Partnership LLP [2020] EWHC 1982 (TCC) (24 July 2020) URL: http://www.bailii.org/ew/cases/EWHC/TCC/2020/1982.html Cite as: [2020] TCLR 7, [2020] PNLR 23, [2020] EWHC 1982 (TCC), [2020] BLR 587 |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
Fetter Lane, London, EC4Y 1NL |
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B e f o r e :
____________________
| RUSHBOND PLC |
Claimant |
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- and |
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| THE J S DESIGN PARTNERSHIP LLP |
Defendant |
____________________
Fiona Sinclair QC (instructed by DWF Law LLP) for the Defendant
Hearing date: 15th June 2020
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Crown Copyright ©
"Covid-19 Protocol: This judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to BAILII. The date and time for hand-down is deemed to be Friday 24th July 2020 at 10:30am"
Mrs Justice O'Farrell:
Background
Proceedings
"The Defendants owed a duty of care in tort to the Clamant in relation to the security of the Property during Mr Jeffrey's visit on the above occasion. Such duty arose from them making an unaccompanied visit to the Property. Further or alternatively, it arose from him having disabled the protections in place during and for the purposes of his visit (including, in particular, the lock to the Door)."
"(a) Mr Jeffrey did not damage the Property, and the Claimant does not allege otherwise.
(b) The third party who, the Claimant alleges, did damage the Property was not under the supervision or control of the Defendant, and the Claimant does not allege otherwise.
(c) In those circumstances, the law imposed no positive duty on the Defendant to take care to protect the Claimant's property from harm except and unless the Defendant voluntarily assumed a responsibility to act positively so as to prevent an unidentified third party(ies) harming the Property.
(d) The Defendant did not assume any such responsibility.
(e) In particular, the facts upon which the Claimant relies do not give rise to such an assumption and the Particulars of Claim disclose no reasonable grounds for the duty alleged:
(i) the Claimant relies on the fact that Mr Jeffrey made an unaccompanied visit to the Property. However Mr Jeffrey visited the Property unaccompanied by the Claimant's managing agents not because the Defendant instructed him to do so or because he chose to do so, but solely because each of the Claimant's managing agents expressly allowed and encouraged him to do so;
(ii) the Claimant relies on the fact that Mr Jeffrey disabled two protections during and for the purposes of his visit. However Mr Jeffrey necessarily unlocked the Access Door and disarmed the alarm system, thereby disabling two protections at the Property for the duration of his visit, because the visit which each of the Claimant's managing agents expressly allowed and encourage him to make would have been impossible unless Mr Jeffrey had unlocked the Access Door and disarmed the alarm system. It was the Claimant's managing agents which knowingly provided Mr Jeffrey with the means of disabling those protections. It was the Claimant's managing agents which did not instruct him as to any way in which those protections could safely be maintained during his visit (there was no such way);
(iii) it was reasonably foreseeable that risk of harm to the Property by an unknown third party was (marginally) increased for one hour on the morning of 30 September 2014. However reasonable foreseeability of harm is inadequate to give rise to a duty of care at common law.
(f) Nor do facts other than those upon which the claimant relies permit the conclusion that the Defendant voluntarily assumed responsibility to the Claimant to prevent an unknown third party(ies) from entering and then damaging the Property. In particular, it was not reasonably foreseeable by the Defendant that the Claimant would reasonably rely upon such an assumption of responsibility and the claimant did not so rely "
"29. It is accepted that Mr Jeffrey did not damage the Property. It is also accepted that the intruder who did damage it was not under his control. But the means of access to the Property used by the intruder was under his control.
30. The disabling of existing protections by Mr Jeffrey did give rise to a duty of care and, indeed, an assumption of responsibility.
31. The Claimant would and did reasonably assume that any visitors to the Property permitted unaccompanied access by the marketing (not managing) agents would take reasonable precautions for the security of the Property, on disabling the existing protections, by locking and/or monitoring the Door, and reasonably relied upon them to do so. That was not dependent on, and did not arise from, it knowing of a particular visit. But in any event, the Claimant was in fact aware of Mr Jeffrey's intended unaccompanied visit, having been notified thereof by Pudney Shuttleworth, and it reasonably assumed he would take such precautions and relied on him to do so. It was also reasonably foreseeable to Mr Jeffrey and the Defendant that it would do so. That there was, admittedly, no direct contact between Mr Jeffrey and the Claimant would not and does not negate the above."
The application
The applicable test
"The court may strike out a statement of case if it appears to the court:
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim "
"[14] The test to be applied on a strikeout reflects the fact that the question is whether the statement of case itself discloses no reasonable grounds for bringing a claim. So, if the pleaded facts do not disclose any legally recognisable claim against a Defendant, it is liable to be struck out
[15] For the purposes of these applications I adopt the statement of principle provided by Peter Gibson LJ in Hughes v Colin Richards & Co [2004] EWCA Civ 266. There the Defendant had brought applications under both CPR 3.4 and CPR 24. Although the application under CPR 24 permitted the court to take account of evidence, none was relied upon and the applications proceeded on the basis that the facts alleged in the Claimant's pleadings were assumed to be true. At [22]-[23], Peter Gibson LJ said:
"The correct approach is not in doubt: the court must be certain that the claim is bound to fail. Unless it is certain, the case is inappropriate for striking out (see Barrett v Enfield London Borough Council [2001] 2 AC 550 at p. 557 per Lord Browne-Wilkinson)." "
"The court may give summary judgment against a claimant on the whole of a claim or on a particular issue if
(a) it considers that
(i) that claimant has no real prospect of succeeding on the claim or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial."
"i) The court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman [2001 1 All ER 91;
ii) A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8];
iii) In reaching its conclusion the court must not conduct a "mini-trial": Swain v Hillman;
iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10];
v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550;
vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63;
vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725."
i) there were no direct dealings between the Claimant and the Defendant;
ii) the Claimant entrusted the keys to the property to letting agents;
iii) the letting agents gave the keys to Mr Jeffrey of the Defendant firm, did not to accompany him on his visit and did not instruct him that the door should be locked and/or monitored during his visit;
iv) during Mr Jeffrey's visit, the side door was unlocked and the alarm system was de-activated;
v) when Mr Jeffrey left the building, he locked the side door and re-activated the alarm.
Parties' submissions
Applicable legal principles
"[103] From time to time the courts have looked for some universal formula or yardstick, but the quest has been elusive. And from time to time a court has used an expression in explaining its reasons for reaching a particular decision which has then been squashed and squeezed in other cases where it does not fit so aptly. "
[104] Lord Wilberforce's two-stage formula in Anns appeared at first to usher in a new era of development in the law of negligence, in which prima facie liability at the first stage was drawn very widely but could be negated or cut down by policy considerations at the second stage.
[106] Doubts about the Anns formula were expressed by the High Court of Australia in Sutherland Shire Council v Heyman (1985) 60 ALR 1 and echoed in subsequent English decisions. In Caparo Plc v Dickman [1990] 2 AC 605 Lord Bridge (with whom Lords Roskill, Ackner and Oliver of Aylmerton agreed) emphasised the inability of any single general principle to provide a practical test which could be applied to every situation to determine whether a duty of care is owed and, if so, what is its scope. He said, at pp 617-618, that there must be not only foreseeability of damage, but there must also exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of "proximity" or "neighbourhood", and the situation should be one in which the court considers it fair, just and reasonable that the court should impose a duty of a given scope on one party for the benefit of the other. He added that the concepts both of "proximity" and "fairness" were not susceptible of any definition which would make them useful as practical tests, but were little more than labels to attach to features of situations which the law recognised as giving rise to a duty of care. Paradoxically, this passage in Lord Bridge's speech has sometimes come to be treated as a blueprint for deciding cases, despite the pains which the author took to make clear that it was not intended to be any such thing.
[107] The Anns formula was finally disapproved in Murphy v Brentwood District Council [1991] AC 398."
"[21] The proposition that there is a Caparo test which applies to all claims in the modern law of negligence, and that in consequence the court will only impose a duty of care where it considers it fair, just and reasonable to do so on the particular facts, is mistaken. As Lord Toulson pointed out in his landmark judgment in Michael v Chief Constable of South Wales Police (Refuge and others intervening) [2015] UKSC 2; [2015] AC 1732, para 106, that understanding of the case mistakes the whole point of Caparo, which was to repudiate the idea that there is a single test which can be applied in all cases in order to determine whether a duty of care exists, and instead to adopt an approach based, in the manner characteristic of the common law, on precedent, and on the development of the law incrementally and by analogy with established authorities.
[25] Lord Bridge [adopted] an incremental approach, based on the use of established authorities to provide guidance as to how novel questions should be decided:
"I think the law has now moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes. We must now, I think, recognise the wisdom of the words of Brennan J in the High Court of Australia in Sutherland Shire Council v Heyman (1985) 60 ALR 1, 43-44, where he said: 'It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories ...'" (p 618)
It was that approach, and not a supposed tripartite test, which Lord Bridge then proceeded to apply to the facts before him.
[26] Applying the approach adopted in Caparo, there are many situations in which it has been clearly established that a duty of care is or is not owed: for example, by motorists to other road users, by manufacturers to consumers, by employers to their employees, and by doctors to their patients. As Lord Browne-Wilkinson explained in Barrett v Enfield London Borough Council [2001] 2 AC 550, 560,
"Once the decision is taken that, say, company auditors though liable to shareholders for negligent auditing are not liable to those proposing to invest in the company ... that decision will apply to all future cases of the same kind".
Where the existence or non-existence of a duty of care has been established, a consideration of justice and reasonableness forms part of the basis on which the law has arrived at the relevant principles. It is therefore unnecessary and inappropriate to reconsider whether the existence of the duty is fair, just and reasonable (subject to the possibility that this court may be invited to depart from an established line of authority). Nor, a fortiori, can justice and reasonableness constitute a basis for discarding established principles and deciding each case according to what the court may regard as its broader merits. Such an approach would be a recipe for inconsistency and uncertainty, as Hobhouse LJ recognised in Perrett v Collins [1999] PNLR 77, 90-91:
"It is a truism to say that any case must be decided taking into account the circumstances of the case, but where those circumstances comply with established categories of liability, a defendant should not be allowed to seek to escape from liability by appealing to some vaguer concept of justice or fairness; the law cannot be re-made for every case. Indeed, the previous authorities have by necessary implication held that it is fair, just and reasonable that the plaintiff should recover in the situations falling within the principles they have applied."
[27] It is normally only in a novel type of case, where established principles do not provide an answer, that the courts need to go beyond those principles in order to decide whether a duty of care should be recognised. Following Caparo, the characteristic approach of the common law in such situations is to develop incrementally and by analogy with established authority. The drawing of an analogy depends on identifying the legally significant features of the situations with which the earlier authorities were concerned. The courts also have to exercise judgement when deciding whether a duty of care should be recognised in a novel type of case. It is the exercise of judgement in those circumstances that involves consideration of what is "fair, just and reasonable". As Lord Millett observed in McFarlane v Tayside Health Board [2000] 2 AC 59, 108, the court is concerned to maintain the coherence of the law and the avoidance of inappropriate distinctions if injustice is to be avoided in other cases. But it is also "engaged in a search for justice, and this demands that the dispute be resolved in a way which is fair and reasonable and accords with ordinary notions of what is fit and proper"."
"[97] English law does not as a general rule impose liability on a defendant (D) for injury or damage to the person or property of a claimant (C) caused by the conduct of a third party (T): Smith v Littlewoods Organisation Ltd [1987] AC 241, 270 (a Scottish appeal in which a large number of English and Scottish cases were reviewed). The fundamental reason, as Lord Goff explained, is that the common law does not generally impose liability for pure omissions. It is one thing to require a person who embarks on action which may harm others to exercise care. It is another matter to hold a person liable in damages for failing to prevent harm caused by someone else.
[98] The rule is not absolute. Apart from statutory exceptions, there are two well recognised types of situation in which the common law may impose liability for a careless omission.
[99] The first is where D was in a position of control over T and should have foreseen the likelihood of T causing damage to somebody in close proximity if D failed to take reasonable care in the exercise of that control
[100] The second general exception applies where D assumes a positive responsibility to safeguard C under the Hedley Byrne principle, as explained by Lord Goff in Spring v Guardian Assurance Plc. It is not a new principle. It embraces the relationships in which a duty to take positive action typically arises: contract, fiduciary relationships, employer and employee, school and pupil, health professional and patient. The list is not exhaustive There has sometimes been a tendency for courts to use the expression "assumption of responsibility" when in truth the responsibility has been imposed by the court rather than assumed by D. It should not be expanded artificially."
"[34] public authorities, like private individuals and bodies, are generally under no duty of care to prevent the occurrence of harm: as Lord Toulson stated in Michael, "the common law does not generally impose liability for pure omissions" (para 97). This "omissions principle" has been helpfully summarised by Tofaris and Steel, "Negligence Liability for Omissions and the Police" (2016) 75 CLJ 128:"
"In the tort of negligence, a person A is not under a duty to take care to prevent harm occurring to person B through a source of danger not created by A unless (i) A has assumed a responsibility to protect B from that danger, (ii) A has done something which prevents another from protecting B from that danger, (iii) A has a special level of control over that source of danger, or (iv) A's status creates an obligation to protect B from that danger."
[37] public authorities, like private individuals and bodies, generally owe no duty of care towards individuals to prevent them from being harmed by the conduct of a third party: see, for example, Smith v Littlewoods Organisation Ltd and Mitchell v Glasgow City Council. In Michael, Lord Toulson explained the point in this way:
"It is one thing to require a person who embarks on action which may harm others to exercise care. It is another matter to hold a person liable in damages for failing to prevent harm caused by someone else." (para 97).
There are however circumstances where such a duty may be owed, as Tofaris and Steele indicated in the passage quoted above. They include circumstances where the public authority has created a danger of harm which would not otherwise have existed, or has assumed a responsibility for an individual's safety on which the individual has relied.
[69] 4. The distinction between careless acts causing personal injury, for which the law generally imposes liability, and careless omissions to prevent acts (by other agencies) causing personal injury, for which the common law generally imposes no liability, is not a mere alternative to policy-based reasoning, but is inherent in the nature of the tort of negligence. For the same reason, although the distinction, like any other distinction, can be difficult to draw in borderline cases, it is of fundamental importance. The central point is that the law of negligence generally imposes duties not to cause harm to other people or their property: it does not generally impose duties to provide them with benefits (including the prevention of harm caused by other agencies). Duties to provide benefits are, in general, voluntarily undertaken rather than being imposed by the common law, and are typically within the domain of contract, promises and trusts rather than tort. It follows from that basic characteristic of the law of negligence that liability is generally imposed for causing harm rather than for failing to prevent harm caused by other people or by natural causes. It is also consistent with that characteristic that the exceptions to the general non-imposition of liability for omissions include situations where there has been a voluntary assumption of responsibility to prevent harm (situations which have sometimes been described as being close or akin to contract), situations where a person has assumed a status which carries with it a responsibility to prevent harm, such as being a parent or standing in loco parentis, and situations where the omission arises in the context of the defendant's having acted so as to create or increase a risk of harm."
"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."
" 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 KB 48, where such responsibility was held to arise from a contract
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."
"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.
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 [1935] 1 K.B. 146, 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 one which may throw an unreasonable burden upon ordinary householders."
"The requisite additional feature that transforms what would otherwise be a mere omission, a breach at most of a moral obligation, into a breach of a legal duty to take reasonable steps to safeguard, or to try to safeguard, the person in question from harm or injury may take a wide variety of forms. Sometimes the additional feature may be found in the manner in which the victim came to be at risk of harm or injury. If a defendant has played some causative part in the train of events that have led to the risk of injury, a duty to take reasonable steps to avert or lessen the risk may arise. Sometimes the additional feature may be found in the relationship between the victim and the defendant: (eg. employee/employer or child/parent) or in the relationship between the defendant and the place where the risk arises (eg. a fire on the defendant's land as in Goldman v Hargrave [1967] 1 AC 645). Sometimes the additional feature may be found in the assumption by the defendant of responsibility for the person at risk of injury (see Smith v Littlewoods Organisation Ltd [1987] AC 241 per Lord Goff of Chieveley at 272). In each case where particular circumstances are relied on as constituting the requisite additional feature alleged to be sufficient to cast upon the defendant the duty to take steps that, if taken, would or might have avoided or lessened the injury to the victim, the question for the court will be whether the circumstances were indeed sufficient for that purpose or whether the case remains one of mere omission. "
"[57] As Lord Goff explained, in some circumstances a defender who provides an opportunity for a third party to harm the pursuer in a foreseeable way must take reasonable care to prevent the harm. If I negligently collide with a cyclist who is knocked unconscious, I must surely take reasonable care to move her from the path of oncoming vehicles. Whether I must also take reasonable care to prevent her belongings from being stolen may be more debatable. Similarly, a decorator who leaves the door of an empty house unlocked is indeed liable if a thief then enters and steals, because the main point, at least, of the decorator's duty to lock the premises is to prevent theft: Stansbie v Troman [1948] 2 KB 48. A police authority owes a duty of care to the public at large not to entrust a gun to a probationer officer whose family circumstances might make him volatile and unstable. So the authority was liable to someone whom the officer shot in the course of an incident when he was intent on using the gun to maim his former partner and her boyfriend: Attorney General of the British Virgin Islands v Hartwell [2004] 1 WLR 1273.
[58] In all these situations the defender's act which provides the opportunity for the third party to injure the claimant is itself wrongful."
"We can see that it rests upon a relationship between the parties, which may be general or specific to the particular transaction, and which may or may not be contractual in nature. All of their Lordships spoke in terms of one party having assumed or undertaken a responsibility towards the other. On this point, Lord Devlin spoke in particularly clear terms in both passages from his speech which I have quoted above. Further, Lord Morris spoke of that party being possessed of a "special skill" which he undertakes to "apply for the assistance of another who relies upon such skill". But the facts of Hedley Byrne itself, which was concerned with the liability of a banker to the recipient for negligence in the provision of a reference gratuitously supplied, show that the concept of a "special skill" must be understood broadly, certainly broadly enough to include special knowledge. Again, though Hedley Byrne was concerned with the provision of information and advice, the
example given by Lord Devlin of the relationship between solicitor and client, and his and Lord Morris's statements of principle, show that the principle extends beyond the provision of information and advice to include the performance of other services. It follows, of course, that although, in the case of the provision of information and advice, reliance upon it by the other party will be necessary to establish a cause of action (because otherwise the negligence will have no causative effect), nevertheless there may be other circumstances in which there will be the necessary reliance to give rise to the
application of the principle. In particular, as cases concerned with solicitor and client demonstrate, where the plaintiff entrusts the defendant with the conduct of his affairs, in general or in particular, he may be held to have relied on the defendant to exercise due skill and care in such conduct."
"The touchstone of liability is not the state of mind of the defendant. An objective test means that the primary focus must be on things said or done by the defendant or on his behalf in dealings with the plaintiff. Obviously, the impact of what a defendant says or does must be judged in the light of the relevant contextual scene. Subject to this qualification the primary focus must be on exchanges (in which term I include statements and conduct) which cross the line between the defendant and the plaintiff."
Discussion
i) whether, as the Claimant contends, this is not a pure omissions case, or at least arguably it is not an omissions case, because the Defendant created the danger and/or played a causative part in the train of events that led to the risk of damage;
ii) if it is an omissions case, whether the Defendant assumed a positive responsibility to safeguard the Claimant's property from harm under the Hedley Byrne principle.
Conclusion
i) The Statement of Case shall be struck out.
ii) Summary judgment on the claim is given for the Defendant.
iii) All consequential or other matters, if not agreed, will be dealt with by the Court at a further hearing to be fixed by the parties.
