Key Facts
- •A tenant (Appellant) of a flat in a building managed by 44-49 Lowndes Square Management Company Limited (Lowndes) suffered a burglary due to the negligence of porters employed by an independent contractor (Farebrother) engaged by Lowndes.
- •The Appellant sued Lowndes in tort, alleging a duty of care arose despite the lack of a direct contractual relationship.
- •Lowndes was contractually obligated to engage a managing agent (Farebrother) to provide property management services, including porterage, but not to directly provide the services itself.
- •The porters had keys to the Appellant's flat, and their negligence in handing keys to intruders led to the burglary.
- •The Appellant abandoned a claim of vicarious liability against Lowndes.
- •The lower court granted summary judgment for Lowndes, finding no duty of care.
- •The Appellant appealed, arguing the lower court erred in law regarding estoppel by deed, privity, and the existence of a duty of care.
Legal Principles
Concurrent duties in tort may arise alongside contractual obligations, even without a direct contractual relationship between the parties.
Henderson v. Merrett Syndicates Ltd. [1995] 2 AC 145
To establish a novel duty of care, courts use incremental analogy with established duty situations.
Case Law
In determining whether a duty of care exists in novel situations, courts should adopt an incremental approach, considering the Caparo factors (foreseeability, proximity, and fairness) and whether the defendant assumed responsibility.
Robinson v. Chief Constable of West Yorkshire Police [2018] UKSC 4; Benyatov v. Credit Suisse (Securities) Europe Limited [2023] EWCA Civ 140
Assumption of responsibility is an important concept, but its application is context-dependent and should be carefully considered, particularly in cases involving negligent misrepresentation.
NRAM Ltd v. Steel [2018] UKSC 13; Playboy Club London Ltd v. Banca Nationale del Lavoro SpA [2018] UKSC 43; Benyatov v. Credit Suisse (Securities) Europe Limited [2023] EWCA Civ 140
Vicarious liability does not extend to independent contractors; the classic distinction between employment and independent contractor relationships remains.
Barclays Bank plc v. Various Claimants [2020] UKSC 13
A duty of care cannot be imposed if it is inconsistent with the contractual scheme between the parties.
Henderson v. Merrett, discussed in the judgment
Estoppel by deed prevents a party from contradicting unambiguous statements or engagements in a deed.
Greer v Kettle [1938] AC 156
Outcomes
Appeal dismissed.
The Court of Appeal found no duty of care owed by Lowndes to the Appellant. Lowndes' contractual obligations were to engage a managing agent, not to directly provide porterage services. The managing agent (Farebrother) and its employees were independent contractors, precluding vicarious liability for Lowndes. The Court rejected the arguments based on assumption of responsibility, estoppel by deed, and the alleged inconsistency of a duty of care with the contractual scheme.