A comforting case update for professionals in the construction industry
The recent Technology and Construction Court (TCC) decision of Rushbond Plc v The J S Design Partnership LLP  provides some welcome comfort to professionals who regularly perform site visits in the course of their professional duties.
The marketing agents of a disused cinema allowed a potential purchaser’s architect to inspect the property. On entering the property through a door, the architect turned off the alarm and shut the door behind him. Despite re-locking the door and re-activating the alarm on leaving the property, he had not locked the door when he performed the site visit. During that period, some vandals gained access to the property and later that day, started a fire that caused substantial damage.
The property owner, Rushbond Plc, issued a claim against the architect, The J S Design Partnership, alleging negligence. The claim was brought in tort, as the owner had no contract with the architect.
The TCC’s decision
The Judge struck out the claim determining some important issues relating to the relationship between the property owner and architect and “omissions”, namely that:
— the architect owed the owner no common law duty of care;
— the claim related to a “pure omission”, for which the common law does not generally impose liability for negligence – the architect’s failure to lock the door allowed vandals to access the building, but it did not provide the means by which they could start a fire and was not causative of the fire;
— although he distinguished that liability for an omission could arise if there was an assumption of responsibility, i.e. if there was a contractual/quasi-contractual relationship (which there was not in this particular case); and
— another exception to the rule could arise where one party held itself out as having a special skill or expertise on which the other relied in safeguarding the property (again, this was not the case here).
As ever, this outcome was case-specific but provides some comfort to professionals who regularly perform site visits in the course of their professional duties. Property owners may therefore wish to be cautious in allowing third parties unaccompanied access to their properties.
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