Other Areas of Law
The icing on the cake: proximity needed to establish a duty

The Court of Appeal has just overturned a decision in which a surveyor was found jointly liable for personal injuries suffered by some members of the public who were struck by part of a shop sign which fell onto the pavement on Putney High Street. The Court has reversed the trial judge’s finding that the surveyor owed a duty of care to the injured claimants, stressing the need for proximity, not just foreseeability of harm, to be made out to establish a duty of care.
The shop was a branch of Maison Blanc, the French patisserie. The surveyor had been acting for Maison Blanc’s landlord as contract administrator in relation to some refurbishment works carried out to the front of the building. A Maison Blanc manager contacted the surveyor to ask him to come and see if those works might have damaged an awning at the front of the shop. The allegation against the surveyor was that he failed to spot a defect which contributed to part of the shop sign falling away and injuring the claimants as they walked past.
The claimants sued Maison Blanc and others. By the time the case reached the Court of Appeal the only live issue was the contribution claim between (1) the contractor which fitted the sign and (2) the surveyor. The TCC trial judge had apportioned their liability 89% against the sign sitters and 11% against the surveyor.
The Court of Appeal judgment (per Moore-Bick LJ) differs from the trial judge in holding that it was not enough that there was foreseeability of harm to a member of the public if the surveyor failed to spot a defect. There had to be proximity between the parties. Here, the surveyor was appointed by the landlord/freeholder, not by Maison Blanc. To make the surveyor liable to notify Maison Blanc of such a defect would, in effect, re-write the surveyor’s contract to make Maison Blanc an additional client, at least for that limited purpose.
To found a duty of care in negligence, applying the Caparo v Dickman test, it was also necessary to show some proximity or “neighbourhood”. Here, the surveyor’s duty was to the landlord. In not reporting any defect to Maison Blanc he was in the same position as if he had been walking by and happened to notice the defect – ie he would be under no duty to notify the occupier.
This is a useful reminder when analysing cases to look for a duty or the lack of one. All too frequently first instance decisions wrongly find a duty of care owed simply because the harm was foreseeable to the defendant. For personal injury practitioners, the need to look for proximity as well is properly emphasised. For professional indemnity practitioners, the first task must always be to look at the terms of the professional’s retainer or instructions, including the issue of identifying the client(s) to whom duties are owed.
What is more, the fact that the harm is physical and not just economic loss does not override this principle. It simply means that the courts must be more careful when imposing a duty in respect of economic loss.
See Harrison v Technical Sign Co Ltd & ors and Active Commercial Interiors v Cluttons [2013] EWCA Civ 1569.


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