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Mitchell & Anor v Glasgow City Council, House of Lords, 18 February 2009

9 March 2009
The issues

Criminal act of a third party – duty to warn another person that he was at risk of injury of damage – assumption of responsibility – Local Authority’s duty to warn tenant of violent neighbour.

The facts

On the 31st July 2001 James Mitchell was attacked by his neighbour, James Drummond. Mr Drummond used a stick or a iron bar. Mr Mitchell was hit about the head and as a result died of his injuries. He was 72 and Drummond was in his mid-60’s. Both were tenants of the local housing authority. Drummond was arrested and charged with murder. A plea of culpable homicide was accepted and he was sentenced to 8 years imprisonment. The Pursuers, Mr Mitchell’s widow and daughter, claimed damages from Glasgow City Council for the loss, injury and damage which they suffered as a result of Mr Mitchell’s death. They claimed in negligence at common law and in addition claimed that the Defender had acted in a way that was incompatible with the deceased’s right to life under Article 2 of the European Convention on Human Rights and was therefore unlawful within the meaning of Section 6(1) of the Human Rights Act 1998. The action was dismissed at first instance. On Appeal an Extra Division allowed an Appeal denying the Pursuer the right to pursue the case under the Human Rights Act.

The Defender Appealed and the Pursuer cross-Appealed. The matter came before the House of Lords. Drummond had had a tenancy since May 1985. He had moved from another property where he had behaved in an anti-social manner and attacked his neighbours with a tyre lever. Mr Mitchell became the tenant of the property next door in March 1986. In 1994 Drummond had been arrested after a violent altercation in which he had smashed Mr Mitchell’s door and windows with an iron bar. Subsequently he made threats of death to Mr Mitchell. The threats continued and Drummond was removed by the police, in handcuffs, on many occasions. He intimidated elderly residents. In January 2001 an incident was recorded on video tape showing Drummond’s behaviour towards Mr Mitchell, which resulted in his being charged with a breach of the peace. The Defender warned him that he may be evicted if his behaviour did not improve. In January 2001 the Defender served on Drummond a Notice of Proceedings for recover of possession of the property. The effect was to provoke more abuse of Mr Mitchell. In July 2001 Mr Drummond was again arrested and charged with a breach of the peace. In July 2001 there was a meeting between Drummond and the Council telling him that a fresh notice of proceedings to recover possession would be served on him and that they would continue to monitor complaints about his behaviour. They told him that continued anti-social behaviour would result in his eviction. Drummond lost his temper and became abusive. He then apologised for having lost his temper and left, returning home. At about 3pm he assaulted Mr Mitchell and caused the injuries which resulted in Mr Mitchell’s death. The Defenders did not warn Mr Mitchell that they were calling the meeting. Nor did they make any attempt to warn him or the police about his behaviour at the meeting or of any possible risk of retaliation against Mr Mitchell. The Pursuer’s case was that if they had had those warnings Mr Mitchell would have been alive to the risk and would have taken steps to avoid Drummond. They also alleged that Mr Mitchell’s death was caused by the Defender’s failure to act on the repeated complaints by instituting proceedings against Drummond to recover possession. That allegation was subsequently not pursued.

The decision

Foreseeability of harm is not in itself enough for the imposition of a duty of care – see Dorset Yacht Company Ltd v Home Office (1970), Smith v Littlewoods Organisation Ltd (reported as Maloco v Littlewoods Organisation Ltd (1987) and Hill v Chief Constable of West Yorkshire (1989)). Secondly, the law does not normally impose a positive duty on a person to protect others. Thirdly, the law does not impose a duty to prevent a person form being harmed by the criminal act of a third party based simply upon foreseeability.

If there was to be a liability a duty would be owed not simply because loss, injury or damage was reasonably foreseeable, but because there was a relationship of proximity between the parties.

In this case there was a relationship of proximity between the deceased and the Defenders. He, as was Mr Drummond, was a tenant of the Defenders. The Defenders accepted that they had a responsibility for the situation that had arisen as the parties landlord. Cases which arose from another’s deliberate wrong-doing could not be founded simply upon the degree of foreseeability. If the Defender was to be held responsible in such circumstances it had to be because the situation was one where it was readily understandable that the law should regard the Defender as under a responsibility to take care to protect the Pursuer from that risk.

The answer as to what more was required was provided by Caparo Industries Plc v Dickman. That case set out the now familiar three fold test which required, in addition to foreseeability and a relationship of proximity, that the situation should be one in which the Court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. In terms of this case the Defenders did not deny that they owed a duty of care to their tenant in the exercise of their contractual duties as landlords. This case however fell outside the ambit of their contractual duty. The question was whether, acknowledging that the Defendants were the deceased’s neighbour’s landlords, that relationship was such that it was fair, just and reasonable that they should be held liable in damages for the omissions to warn that were relied on in this case. It was one of fairness and public policy.

The implications of saying that there was a duty to warn were complex and far reaching. If there was a duty to warn in this case did it not follow that there was a duty to warn in every case where a social landlord had reason to suspect that his tenant might react to steps to address his anti-social behaviour by attacking the personal property of anyone he suspects of informing against him. If social landlords were under such duties, were not social workers and private landlords under the same duties? Although, here it was said that the duty was owed to the deceased, others in the neighbourhood had complained to the Defenders about Drummond’s behaviour. It was said that there was a duty to keep the deceased informed of the steps that they proposed taking against Drummond and, in particular, to warn him about the meeting arranged for the 31st July. This suggested that the Defenders would have had to determine, step by step at each stage, whether or not the actions that they proposed to take in fulfilment of their responsibilities as landlords required a warning to be given, and to whom. And 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 on. These problems suggested that social landlords would be deterred from intervening to reduce the incidents of anti-social behaviour.

In conclusion, it would not be fair, just or reasonable to hold that the Defenders were under a duty to warn the deceased of the steps that they were taking, and that the common law case that was made against them was irrelevant. A duty to warn another person that he was at risk of loss, injury or damage as the result of a criminal act of a third party would arise only where the person who was said to be under that duty had by his words or conduct assumed responsibility for the safety of the person who was at risk.

Human Rights Act Issue
Following the decision in Osman v United Kingdom, the test to be satisfied was a high one. The obligation might arise where it could be established “That the Authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk”. (Osman v United Kingdom 1998 [29EHRR245]). Taking the pleaded case at its highest, there was nothing to suggest that Mr Mitchell’s life was really at risk at all, let alone that any such risk was immediate. The only previous incident involving violence had been in 1994. Although Drummond had lost his temper at the meeting on the day in question and had been abusive, he had not uttered threats against Mr Mitchell, nor was he armed with any kind of weapon. The situation disclosed by the pleadings was far removed from those referred to in Savage v South Essex Partnership NHS Trust.

Appeal allowed.

Cross-Appeal dismissed.

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