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Maloco v. Littlewoods
Factual and Procedural Background
Company A owned a disused cinema situated between two lanes in The City. After the cinema closed in late May 1976, contractors working for Company A vacated the premises in June. Children subsequently forced entry, treated the building as an informal playground and caused internal damage. On 5 July 1976 a deliberately set fire began inside the cinema, destroyed it, crossed a lane and damaged the neighbouring café and billiard hall (owned by Plaintiff 1) and, via sparks, burned down a nearby Victorian church (owned by Plaintiff 2).
Plaintiffs sued Company A for negligence in the Court of Session, alleging failure to secure the premises or employ a caretaker. The Lord Ordinary (Judge [Last Name]) found Company A liable and awarded agreed and assessed damages. Company A reclaimed; the First Division (Inner House) unanimously allowed the reclaiming motions and dismissed both actions on 19 November 1985. Plaintiffs appealed to the House of Lords, which on 5 February 1987 dismissed the appeals and affirmed the Inner House decision.
Legal Issues Presented
- Whether the owner and occupier of vacant premises owes a specific duty of care to neighbouring proprietors to prevent unlawful entry by third-party vandals.
- Whether a major fire started by unknown trespassers was a reasonably foreseeable consequence of leaving the cinema unsecured.
- If a duty existed, whether Company A’s failure to employ a caretaker or make regular inspections caused the subsequent loss.
- Subsidiary: the correctness of the Lord Ordinary’s assessment of damages (addressed only if liability were established).
Arguments of the Parties
Plaintiffs' Arguments
- Company A knew or ought to have known that an unused cinema would attract vandals and that vandalism could include fire-raising.
- Reasonable precautions—boarding up doors and windows, regular inspections and a 24-hour caretaker—would probably have prevented entry and the fire.
- Only likelihood, not “very” likelihood, of fire was required for reasonable foreseeability.
- Because fire spreads unpredictably, any small blaze inside the cinema posed an obvious risk to neighbouring property.
Defendant's Arguments
- No evidence showed Company A knew, or ought to have known, of prior fire attempts; therefore the Lord Ordinary’s reliance on those incidents was misplaced.
- The correct test is whether it was likely vandals would deliberately set the whole building ablaze, not whether a minor fire might be started.
- A 24-hour watch would impose an unreasonable burden on property owners; responsibility for guarding against vandals should lie with law-enforcement or with each proprietor protecting his own premises.
- Even if a duty existed, causation was not established because intruders could have outwitted a caretaker.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Donoghue v. Stevenson (1932) | General neighbour principle; duty of care depends on reasonable foreseeability of harm. | Court accepted the principle but held it did not extend to imposing a duty to prevent unforeseeable wilful fire-raising. |
| Dorset Yacht Co. Ltd. v. Home Office (1970) | Liability for acts of third parties where such acts were highly likely. | Used to contrast situations where third-party wrongdoing is “very likely” with the present case where it was not. |
| Muir v. Glasgow Corporation (1943) | Foreseeability judged by the “reasonable and probable” consequences test; a jury question. | Court treated foreseeability as a jury issue and concluded major fire was not a probable consequence. |
| Bolton v. Stone (1951) | Small risks may be disregarded if elimination is burdensome. | Supported view that imposing a 24-hour guard for a remote risk would be unreasonable. |
| Goldman v. Hargrave (1967) | Affirmative duty arises where an occupier knows of a fire hazard on his land. | Distinguished: Company A had no knowledge (actual or constructive) of prior fires and thus no such duty arose. |
| Bourhill v. Young (1942) | Duty limited to injury that is reasonably and probably to be anticipated. | Relied upon to emphasise limits of foreseeability in negligence. |
| Haynes v. Harwood (1935) | Liability when a defender creates a source of danger likely to be activated by third parties. | Held inapplicable because the cinema was not an inherent fire hazard. |
| Squires v. Perth & Kinross D.C. (1985) | Example where occupiers were liable for theft facilitated by building works. | Cited by Plaintiffs; court distinguished it as wrongly decided or factually different. |
| Lamb v. Camden L.B.C. (1981) | No general duty to safeguard neighbours against unforeseeable third-party wrongdoing. | Endorsed by the court to show policy against imposing broad duties for vandalism. |
| Sedleigh-Denfield v. O'Callaghan (1940) | Occupier’s duty to remove hazards on land of which he knows. | Noted, but court found no knowledge of hazard in present case. |
Court's Reasoning and Analysis
The House of Lords treated foreseeability as the decisive element. Their Lordships accepted that children breaking into an empty cinema was reasonably foreseeable, but concluded that a major fire engulfing the structure and spreading to adjoining premises was not a probable or likely consequence that Company A should have anticipated.
Key steps in the analysis:
- The cinema’s construction and contents did not make it an inherent fire hazard. Leaving it unsecured did not create a
source of danger
comparable to explosives or flammable chemicals. - Company A had no knowledge—actual or constructive—of two earlier minor fire incidents; those episodes therefore could not be used to heighten foreseeability.
- Foreseeability must be judged by what a reasonable proprietor would contemplate; it is not sufficient that vandals might light a small fire. The relevant question is whether it was likely they would deliberately start a blaze capable of destroying the building.
- Imposing a duty to maintain a 24-hour watch would place an excessive burden on ordinary property owners and conflict with accepted social practice.
- Because the fundamental duty was not established, issues of causation and damages did not arise; however, the Lords noted that had liability been established, the Inner House’s reductions to the award would have required revision.
Holding and Implications
APPEALS DISMISSED; ACTIONS DISMISSED.
The court held that Company A owed no duty to protect neighbouring property from the remote risk of wilful fire-raising by trespassing vandals. The decision confirms that:
- Owners are not generally liable for deliberate wrongdoing of third parties absent specific knowledge or creation of an unusual hazard.
- Reasonable foreseeability requires more than a bare possibility—major damage must be a probable consequence.
- The law balances foreseeability against the social burden of imposing extensive security obligations on property owners.
No new cause of action was recognised, and the ruling narrows circumstances in which occupiers must guard against third-party fire-raising.
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