Stansbie v Troman.

Image 1 in PDF format. Available for Offline Print Court of Appeal 15 March 1948

[1948] 2 K.B. 48
Tucker and Somervell L.J. and Roxburgh J. 1948 Mar. 15. NegligenceDecorator at work in houseHouse left unattended with door unlocked TheftDecorator's dutyLiability. A contractor carrying out decorations in a house was to his knowledge left alone on the premises by the householder's wife. During her absence, he left the house to obtain wallpaper. He fastened back by its catch the latch of the yale lock on the front door and closed the door behind him. That door was accordingly then held shut only by its mortise lock, and could be opened by a mere turn of the handle. During the decorator's absence a thief entered the house and stole property, the value of which the householder claimed from the decorator. Held: (1.) that the contractual relationship between the decorator and the householder imposed a duty on the former to take reasonable care with regard to the state of the premises if he left them during the performance of his work; (2.) that it was a breach of that duty to leave the house with the front door in the condition in which he had left it; and (3.) that it was as a direct result of that*49 breach of duty that the thief had entered the house and stolen the property, because the breach of duty consisted in a failure to guard against the very loss which in fact occurred. The decorator was accordingly liable for the householder's loss.Dictum of Lord Sumner in Weld-Blundell v. Stephens [1920] A. C. 956, 986, explained. APPEAL from Birmingham county court. On January 14, 1947, the plaintiff, Stansbie, a decorator, was at work in the house of the defendant, Troman. Between 1.30 and 2 p.m. Mrs. Troman, the householder's wife, left the house, having called up to the decorator that she was going out. The decorator was thus left alone in the house. At about half past three he went out to a neighbouring shop to buy a roll of wallpaper. On leaving the house he fastened back by its catch the latch of the yale lock on the front door, and pulled the door to. The door was then unlocked, but held to by its ordinary mortise lock with a handle, and it was only necessary to turn the handle to open the door. The decorator had some difficulty in obtaining the paper, and did not return until about 5.15 p.m. He then found the front door open. He waited until 8 p.m., and afterwards learnt from the

householder that a quantity of articles, including a diamond bracelet and clothes, had been stolen. The value of those articles, 334l. 15s., was the subject of counterclaim by the householder in an action by the decorator for the price of work done. The county court judge, in a reserved judgment, stated that the first question which he had to investigate was whether any duty was owed by the plaintiff decorator to the defendant householder; secondly, whether there had been any breach of that duty; and, thirdly, whether the damage had resulted from that breach. With regard to the first question, after referring to Donoghue v. Stevenson 1 he said: "But I think that when the decorator was left alone in the house he was in a position to exercise control over access into the house, and this put him in such a relation to the householder that, in exercising such control, he ought to have had in mind the safety of the householder's goods which were in the house." He therefore gave judgment for the householder. The decorator now appealed. R. K. Brown for the decorator. The first question is whether the decorator owed any duty to the householder in*50 this matter. That involves considering the relationship between the parties. It is submitted that, while there was a contractual relationship between them, there was no proximity of relationship such as that found in the line of cases to which Donoghue v. Stevenson 2 belongs. The relationship must be that of a tradesman to the person employing him. There was no relationship of a kind to create a duty in the decorator to keep the house secure against thieves. Certain duties rest on him because they are within the scope of his contractual obligations; but it would be creating a totally different kind of duty, not within the scope of those obligations, if he were to be held responsible for the safety of the house in the absence of the householder. If he had been painting an empty house it would be his duty to lock it up if he left it. The painter at work in an empty house is its custodian. Here it is and remains the householder's business to look after his house. He cannot just shift on to the shoulders of a decorator his own normal responsibilities as a householder. Looking after the door is not part of the job of painting a house. The next question is whether, if there was a breach of duty, the damage here flowed from the breach. Lord Sumner in his opinion in Weld-Blundell v. Stephens 3 made an observation which exactly applies to this case. The theft which occurred here is the intervention of a third party which Lord Sumner supposed in his example. It breaks the chain of causation. Looking at all the facts of this case, surely it cannot be said that the act of this thief was the result of the decorator's leaving the door unlocked. The decorator was not the cause of the theft. The decorator was under no duty to leave the house secure; if he was, he was not in breach of that duty; and if he was in breach of duty the loss which occurred was not the result of it. Verne for the householder was not called on to argue. TUCKER L.J. It was argued for the decorator that no duty was owed, that the duty must arise from the relationship between the parties, and that it must be a duty within the scope of the contractual relationship existing between them. I agree that the duty must be within the scope of the contractual relationship between these two persons, but I think that that contractual relationship did impose a duty on the plaintiff decorator to take reasonable care with regard to the state of the premises if he left them during the performance*51 of his work. That, I think, was the measure of the duty.

The next question is whether there was a breach of that duty. If I am right as to the existence of the duty, I think that there can be no question but that there was a breach of it, for I do not think that it was acting reasonably, that it was taking reasonable care, to leave this empty house for a period of two hours with the front door in that condition. The county court judge, in considering that matter, applied the test of the ordinary reasonable man, quoting the words of Greer L.J. in Hall v. Brooklands Auto Racing Club 4: "the man who takes the magazines at home, and in the evenings pushes the lawn mower in his shirt sleeves," and said that he thought that the decorator, "having fastened back the latch of the yale lock, ought not to have left the house more than a few moments, if at all, and in staying away for as long as two hours was guilty of negligence." I agree with that finding. With regard to the third question, the judge said that he had found considerable difficulty and that his view had wavered, and continued: "It seems clear that the negligence of the decorator was not the direct cause of the householder's loss. The direct cause was the crime of the thief. The decorator plaintiff was no party to the crime, which was a thing that he never intended. On the other hand, the main purpose of the latch is to keep out thieves, so far as the latch will serve. If the latch be fastened back, the house needs watching; and therefore the negligence of the decorator really consisted in failure to take reasonable care to guard against the very thing that happened. Forcing a door or breaking a window takes time and may attract attention. The decorator's negligence increased the problematic risk of the theft; and the risk matured into a certainty." Mr. Brown referred to Weld-Blundell v. Stephens 5 and, in particular, to the following passage in the speech of Lord Sumner6: "In general (apart from special contracts and relations and the maxim respondeat superior), even though A. is in fault, he is not responsible for injury to C. which B., a stranger to him, deliberately chooses to do. Though A. may have given the occasion for B.'s mischievous activity, B. then becomes a new and independent cause." I do not think*52 that Lord Sumner would have intended that very general statement to apply to the facts of a case such as the present where, as the judge points out, the act of negligence itself consisted in the failure to take reasonable care to guard against the very thing that in fact happened. The reason why the decorator owed a duty to the householder to leave the premises in a reasonably secure state was because otherwise thieves or dishonest persons might gain access to them; and it seems to me that if the decorator was, as I think he was, negligent in leaving the house in this condition, it was as a direct result of his negligence that the thief entered by the front door, which was left unlocked, and stole these valuable goods. Except that I would have phrased the nature of the duty somewhat differently from the way in which the county court judge put it, I am in entire agreement with his judgment, and in my view the appeal fails. SOMERVELL L.J. This is not, I think, one of those cases that falls plainly on one side or other of some line which the law draws; it required careful consideration. In my opinion it received careful consideration from the county court judge, and I do not desire to add anything to what Tucker L.J. has said, with whose judgment I agree. ROXBURGH J. I agree.

Representation
Solicitors for the plaintiff decorator: Stafford Clark & Co., for Tanfield & Co., Birmingham. Solicitors for the defendant householder: Swepstones, for Margetts & Ritchie, Birmingham. Appeal dismissed. ([Reported by R. C. CALBURN, Esq., Barrister-at-Law.] )