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No duty on social landlords to protect tenants against the actions of others
23 February 2009
On 18 February 2009, the House of Lords handed down their
judgment in the case of Mitchell and another v Glasgow City
Council [2009] UKHL 11.
The claim
The case was brought by Anne Mitchell, the widow of James
Mitchell, who was killed by a violent neighbour. Mrs Mitchell sued
Glasgow City Council for failing in its duty of care towards Mr
Mitchell. Mr Mitchell moved into a property on the Moss Park estate
of Glasgow in March 1986. His neighbour was Mr Drummond. Both
properties were owned by Glasgow City Council.
Trouble began in December 1994 when Mr Mitchell complained to Mr
Drummond for playing loud music; Drummond retaliated, bashing the
Mitchells’ door with a tyre lever and smashing his windows. The
police were called and Drummond arrested. Between 1994 and 2001
there were countless incidences of verbal and physical abuse
directed at Mr Mitchell and his family by Mr Drummond, including
frequent threats to kill.
Subsequently, Mr Drummond was warned by Glasgow City Council
that they were considering possession proceedings. In January 2001,
the Council served on Mr Drummond, a Notice of Proceedings for
Recovery of Possession of the property. On 31 July 2001, the
Council arranged a meeting with Mr Drummond to discuss his
behaviour and the Notice of Proceedings. At the meeting the Council
explained that they would be issuing a fresh Notice of Proceedings
and would continue to monitor his anti-social behaviour, which
could result in his eviction. Mr Drummond lost his temper and
became abusive, but then appeared to calm down and apologised to
the Council’s staff. He then left the meeting and violently
assaulted Mr Mitchell, leaving him with injuries from which he
subsequently died.
Mrs Mitchell sought to claim damages from the Council on the
basis that they should have kept Mr Mitchell and the police
informed of the steps they were taking against Mr Drummond, and in
particular should have notified them of the meeting on 31 July
2001.
The judgment
Judgment was given in favour of the Council. Lord Hope said that
if such a duty to warn was imposed, the Council would have to
determine, step by step at each stage, whether the actions they
proposed to take in fulfilment of their responsibilities as
landlords, required a warning to be given, and to whom. They would
have had to defer taking that step until the warning had been
received by everyone, and an opportunity given for it to be acted
upon. The more attentive the Council was to their ordinary duties
as landlords, the more onerous the duty to warn would become.
Lord Hope went on to state that these problems suggest that to
impose a duty to warn - together with the risk that action could be
taken against them by anybody who suffered loss, injury or damage
if they had received no warning - would deter social landlords from
intervening to reduce incidences of anti-social behaviour.
Lord Hope’s judgment confirmed an earlier House of Lords
decision in Maloco v Littlewoods Organisation 1987 SC (HL)
37. It was held that, as a general rule, a duty to warn
another person that he is at risk of loss, injury or damage as a
result of the criminal act of a third party, will arise only where
the person who is said to be under that duty, has, by his words or
conduct, assumed responsibility for the safety of the person who is
at risk.
While it was accepted that the Council was the landlord of both
Mr Mitchell and Mr Drummond, and as such, there was a relationship
of proximity, the crucial question was whether it was fair, just
and reasonable that it should be held liable in damages for failing
to warn. Applying the tests of fairness and public policy, the
Lordships held that the answer was no.
The Council had not assumed responsibility to advise Mr Mitchell
of the steps they were taking or induced him to rely on them.
Accordingly, it was held that it would not be fair, just or
reasonable to hold that the Council was under a duty to warn Mr
Mitchell of the steps they were taking.
Conclusion
This case reinforces the point that social landlords do not
ordinarily owe a duty to tenants to protect them from the actions
of others, including other tenants. Had a duty been established,
the decision would have had far reaching implications, not only for
social landlords, but would have imposed a duty to warn in every
case where an individual or organisation has reason to suspect that
harm may come to another, opening the floodgates to claims.
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