Tips and traps for site visits

Paul Henson is a Partner and Louise Ash a Trainee Solicitor in the Real Estate Disputes Department at Irwin Mitchell

The Court of Appeal in Rushbond plc v The JS Design Partnership LLP [2021] EWCA Civ 1889 shone a light on the responsibility bestowed on those visiting properties when it unanimously held that an architect “could” owe a property owner a duty of care for damage perpetrated by a third party intruder after the architect failed to lock an entrance door.

The architect, who was acting for a potential tenant of the empty cinema site in central Leeds, was visiting the site with two of his colleagues, unaccompanied by the property owner or marketing agent. The site was accessed by a door on a side street. Prior to visiting, the architect was given the keys and the code to the security alarm, but by all accounts, was not specifically told to lock the door.

Upon visiting the site, the architect unlocked the side door and deactivated the alarm, failing to re-lock the same door for the duration of his visit. During his visit, an intruder gained access to the building without the knowledge of the architect. It was only after the architect had left the site that a fire was started and caused around £6.5 million worth of damage to the building.

The property owner was clearly trying to find an appropriately insured party to pursue for the damage and so issued a claim against the architect for damages arising because of his negligence. The property owner had no contractual relationship with the architect (who was appointed by the third-party potential occupier) and so had to rely on tortious liability. In the Technology and Construction Court (TCC) at first instance the claim was struck out as it was held to be a case of “pure omission” as the damage suffered by the property owner was fire damage caused by the third party unconnected with the architect. The TCC found that whilst the architect’s failure to lock the door during his visit may have allowed the third party to gain access it did not provide the means by which that third party could start a fire and it was not causative of the fire.

The Court of Appeal’s decision (reversing that of the judge in the TCC at first instance and reinstating the claim) was that it was arguable that the architect owed the property owner a duty of care and so could be liable in negligence. However, whether he did actually owe the property owner a duty of care and was actually liable are questions reserved for a full trial (which is yet to be heard).

To assist those who regularly access and inspect properties and to avoid future visitors getting into similar predicaments as the architect in Rushbond, we have put together a list of key practical tips and traps applicable for anyone given unaccompanied access to a property:

A duty of care may be owed to the property owner regardless of what they do or don’t say to do.

• Permitted visitors such as the architect in this case enter properties as licensees to carry out a certain job, and as such, they may owe the property owner a duty to take reasonable care while carrying out that task. In this case, it included a duty to take reasonable precautions as to security and to take reasonable care not to act in a way to cause damage and loss to the property owner in some other way.
• The Court of Appeal’s view was that it is not necessary for a  property owner (or their agent) to expressly warn the architect of dangers which should be apparent to any reasonable person, nor did they need to request that such visitors carry out a specific task (such as locking the door) for a duty to exist.
• Therefore, when entering a site in circumstances like those in the Rushbond case, it is important for such visitors to assess what the risks are in the specific environment.
• It was noted by Lord Justice Coulson giving the leading judgment of the Court of Appeal in Rushbond that, “…access by a vagrant and resulting property damage may have been foreseeable, so that, even if the burning of the property to the ground was not foreseeable, it will arguably not matter.”

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

• What is ‘proportionate’ relates to the risks that a reasonable person would perceive in the circumstances, which is site-specific, and it is  for everyone to make their own assessment.
• It would be wise to ensure that all doors are always locked, even when staying on site. In Rushbond, the building was large, dark and derelict, meaning that the architect was not aware when the intruder gained entry. The building was accessible via numerous doors which were ordinarily kept permanently locked, there was a sensor alarm installed and the property owner ensured that regular inspections took place. All these elements suggest the need for heightened precautions.
• The building was also located on a busy square in Leeds city centre and as such, it was more foreseeable that an intruder could gain entry than if the property was situated in a quieter location.
• LJ Coulson noted that, “…I would observe that empty city centre properties are a magnet for vagrants, and that in winter, once inside, one of the first things that a vagrant will do is to build a fire. Whether or not there is in fact liability on the part of the respondent for the acts of third parties will be determined at the trial, but I consider that that is another reason why the existence of a duty in this case is at least arguable.”
• In practice, it is a good idea for visitors to speak to the property owner about any specific security requirements or other risks before accessing their property and to be even more mindful when dealing with empty properties in town and city centre locations.

 Positive actions can lead to negative results. 

• The general rule is that liability rarely arises where somebody simply “omits” to do something. In Rushbond the circumstances distinguished it from a “pure omissions” case so that it is at least arguable that the architect breached his duty, because he positively carried out the actions which allowed the intruder to gain access – namely by unlocking the door and deactivating the alarm. He then left the door unlocked (possibly open) and unguarded, thereby rendering a secure building at risk. LJ Coulson concluded that, “On the Appellant's case taken at its highest, it was that, and that alone, which allowed the intruder inside.”

In summary, the Rushbond case places an emphasis on the importance of taking reasonable care, especially in terms of security, when carrying out site visits and it is now increasingly important for third parties to know their responsibilities and the risks that certain actions – and omissions – can entail.