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Judgments - Mitchell (AP) and another (Original Respondents and Cross-appellants) v Glasgow City Council (Original Appellants and Cross-respondents) (Scotland)


SESSION 2008-09

[2009] UKHL 11

on appeal from: [2008]CSIH 19




Mitchell (AP) and another (Original Respondents and Cross-appellants) v Glasgow City Council (Original Appellants and Cross-respondents) (Scotland)

Appellate Committee

Lord Hope of Craighead

Lord Scott of Foscote

Lord Rodger of Earlsferry

Baroness Hale of Richmond

Lord Brown of Eaton-under-Heywood


Original Appellants:

Andrew Smith QC

Roddy Dunlop

(Instructed by Lewis Silkin as London Agents for Council Solicitor, City of Edinburgh Council)

Original Respondents:

Colin McEachran QC

Alison Stirling

(Instructed by Drummond Miller LLP)

Interveners (Housing Associations)

Jonathan Brown

(Instructed by McClure Naismith LLP)

Hearing dates:

1 and 2 DECEMBER 2008






Mitchell (AP) and another (AP) (Original Respondents and Cross-appellants) v Glasgow City Council (Original Appellants and Cross-respondents) (Scotland)

[2009] UKHL 11


My Lords,

1.  On 31 July 2001 the late James Dow Mitchell was attacked by his next door neighbour James Drummond. A stick or an iron bar was used in this attack, and Mr Mitchell was hit about the head and severely injured. On 10 August 2001 he died as a result of his injuries. The deceased, who was aged 72, and Drummond, who was in his mid 60s, were both tenants of the defenders, the local housing authority. Drummond was arrested and charged with the murder. On 12 July 2002 the Crown accepted his plea to culpable homicide. He was sentenced to eight years imprisonment. Later it was reduced to five years on appeal. The lenient way in which Drummond appears to have been treated must not be allowed to disguise the tragic circumstances of the deceased’s death and the distress which it must have caused to the deceased’s family.

2.  The pursuers are the deceased’s widow and his daughter. They claim damages from the defenders for the loss, injury and damage which they suffered as a result of the deceased’s death. They base their case on two grounds. The first is negligence at common law. The second is that the defenders 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 accordingly unlawful within the meaning of section 6(1) of the Human Rights Act 1998. On 30 June 2005 the Lord Ordinary, Lord Bracadale, dismissed the action: 2005 SLT 1100. On 29 February 2008 an Extra Division (Lady Paton, Lord Reed and Lord Penrose) by a majority (Lord Reed dissenting) recalled the Lord Ordinary’s interlocutor and allowed a proof before answer on the pursuers’ case at common law. By a different majority (Lady Paton dissenting) it excluded from probation their averments that the defenders acted in a way that was incompatible with the deceased’s Convention right: 2008 SC 351. The defenders appeal to your Lordships against the allowance of a proof before answer. The pursuers cross-appeal against the exclusion from probation of their case under the Human Rights Act 1998.

The facts

3.  Lady Paton set out in paras 4 to 17 of her opinion a succinct summary of the pursuers’ averments about the events that led up to the deceased’s death. They go back a long way. Drummond and the deceased’s family had been neighbours since the 1980s. Drummond was given the tenancy of 225 Bellahouston Drive in May 1985. He moved there from Middleton Street, where he had behaved in an anti-social manner and attacked his neighbours with a tyre lever. The deceased became the tenant of the property next door at 221 Bellahouston Drive in March 1986. The defenders provided them with this accommodation under the Housing (Scotland) Act 1966, which was later replaced by the Housing (Scotland) Act 1987. In December 1994 there was an incident in the early hours of the morning. Drummond had been playing loud music which woke up the deceased. He banged on the wall to get it turned down. Drummond retaliated by banging on his wall and shouting abuse. A few minutes later he arrived at the deceased’s door armed with an iron bar. He used it to batter the deceased’s door and smash his windows. The police were called and Drummond was arrested. He shouted that he would kill the deceased when he got out of jail. A few days later, having been released on bail, he followed the deceased home shouting abuse. He told him that he would be dead meat after the court case. There were further such incidents at the beginning of January 1995. In March 1995 the defenders warned Drummond that if he persisted in this conduct they would take action to recover possession of his house.

4.  Despite this warning Drummond continued to threaten to kill the deceased at least once a month. He was removed by the police in handcuffs on many occasions and intimidated elderly residents. The deceased and his family consulted city councillors and a member of the Scottish Parliament, who wrote to the defenders about the abuse which the deceased was suffering. Victim Support also wrote to the defenders in August 1999 about other residents’ fears of retaliation by Drummond if they gave evidence against him. They were however provided with a signed statement by a local resident confirming that she had heard Drummond threaten to kill the deceased on many occasions. In January 2001 an incident was recorded on video tape showing Drummond’s behaviour towards the deceased which resulted in his being charged with a breach of the peace. The defenders warned him again that he might be evicted if his behaviour did not improve.

5.  At the end of January 2001 the defenders served on Drummond a notice of proceedings for recovery of possession under section 47 of the 1987 Act. Para 8 of Schedule 3 to that Act provides that one of the grounds for the recovery of possession is that the tenant has been guilty of conduct in or in the vicinity of the house which is a nuisance or annoyance and in the opinion of the landlord it is appropriate in the circumstances to require him to move to other accommodation. The notice was valid for six months: see section 47(4). The defenders kept the deceased informed of the steps that they were taking against Drummond during this period. Their effect on his behaviour was to provoke more abuse. An incident on 12 June 2001 was video recorded and the deceased reported it to the defenders. There was a further incident on 10 July 2001 when the police were called and Drummond was again arrested and charged with a breach of the peace. The defenders received a police report of that incident.

6.  On 26 July 2001 the defenders wrote to Drummond inviting him to a meeting to be held on 31 July 2001. He was told that the purpose of this meeting was to discuss the incident of 10 July 2001 and the notice of proceedings for recovery of possession that had been served on him in January as they were considering issuing a further notice. Drummond attended the meeting on 31 July 2001, which began at 2pm. The defenders told him that a fresh notice of proceedings to recover possession would be served on him. They said that they would continue to monitor complaints about his behaviour. They told him that continued anti-social behaviour could result in his eviction. Drummond lost his temper and became abusive. He then apologised to the defenders’ staff for having lost his temper. After leaving the meeting Drummond returned to Bellahouston Drive. At about 3pm he assaulted the deceased and inflicted the injuries which caused his death.

7.  The defenders did not warn the deceased that they had summoned Drummond to the meeting that was held on 31 July 2001. Nor did they make any attempt to warn either him or the police about his behaviour at the meeting or of any possible risk of retaliation against the deceased as a result of it. The pursuers’ case is that if he had been given these warnings the deceased would not have died. He would have been alerted to the fact that Drummond was likely to be angry and violent. He would have been on the look out and taken steps to avoid him. The pursuers also allege that the deceased’s death was caused by the defenders’ failure to act on the repeated complaints by instituting proceedings against Drummond to recover possession by October 1999. But they gave notice in their written case that they did not intend to maintain that argument, which the Lord Ordinary had rejected. It has been held in a series of cases that a local authority is not normally liable for errors of judgment in the exercise of its discretionary powers under a statute: see Hussain v Lancaster City Council [2000] QB 1; X (Minors) v Bedfordshire County Council [1995] 2 AC 633; D v East Berkshire Community Health NHS Trust [2005] UKHL 23; [2005] 2AC 373, para 82 per Lord Nicholls of Birkenhead. So it is the allegations of a failure to give warnings that, for the purposes of this appeal, form the basis of the pursuers’ case against the defenders at common law and under the statute.

The averments of fault

8.  The following are the duties that the pursuers allege against the defenders at common law: (a) following the report of the incident on 10 July 2001, to keep the deceased and the police informed of the steps which they proposed to take against Drummond; (b) to advise the deceased that he might be at real and immediate risk of injury; (c) to consider the deceased’s safety when arranging the meeting of 31 July 2001; (d) to advise the deceased that a meeting had been arranged for 31 July 2001 at which further steps were to be taken regarding recovery of possession of Drummond’s property; (e) to alert the police that a meeting had been arranged for that day; and (f) to advise the deceased of what had happened at the meeting and of Drummond’s state of mind during it.

9.  The pursuers also allege a contravention by the defenders of article 2 of the Convention in that, by failing to advise the deceased that the meeting of 31 July 2001 was to take place and of the events that transpired at that meeting, they acted in a way that was incompatible with his right to life. This is the basis of their claim that the defenders acted in a way that was unlawful within the meaning of section 6(1) of the Human Rights Act 1998.

The issue on the pleadings

10.  The defenders seek dismissal of the action on the ground that the pursuers’ pleadings are irrelevant: see their first plea in law. It is well established that an action will not be dismissed as irrelevant unless, even if the pursuer proves all his averments, it must necessarily fail: Jamieson v Jamieson 1952 SC (HL) 44, 50, per Lord Normand. Mr McEachran QC for the respondents, in his attractive address to your Lordships, pointed out that a pursuer’s pleadings are only the framework for the leading of evidence. He maintained that it was not necessary for him to aver every detail, and that the significance of what was averred could not be judged adequately by the court until after it had heard all the evidence. He relied on Lord Keith of Avonholm’s observation in Miller v South of Scotland Electricity Board 1958 SC (HL) 20, 33 that in claims of damages for alleged negligence it could only be in rare and exceptional cases that an action could be disposed of on relevancy. This was because the facets and detail of a case on which an assessment of the law must depend could not be conveyed to the mind by mere averments of the bare bones of the case.

11.  The defenders’ argument that the pursuers’ case is irrelevant does not, however, depend on the facets and detail of Drummond’s behaviour or the way the defenders responded to it. If the sole issue at this stage had been whether the pursuers had averred enough for their common law case to go to proof on the issue of foreseeability, I would have been very reluctant to differ from the decision of the majority of their Lordships of the Extra Division that the pursuers should be allowed a proof before answer. But that is not the issue to which the defenders’ argument is directed. They maintain that the question which this case raises is whether the failures in duty that are alleged against them were within the scope of their duty of care for the deceased. Questions about the existence or scope of a duty of care are questions of law. They are not questions of the kind that Lord Keith had in mind when he said that the circumstances of the case will normally have to be ascertained by evidence.

12.  There will, of course, be cases where the existence or scope of a duty of care cannot safely be determined without hearing the evidence. But no advantage is to be gained by sending a case to proof when it is clear from the averments that, even if everything that the pursuer avers is proved, the case must fail. That is likely to be the case where the issue on which the case depends is one of principle or, as Lord Reed put it in para 135 of his opinion, of legal analysis. In such cases, it is not just that there would be no advantage in sending the case to proof. It would be unfair for the defenders to be required to spend time and money on what will obviously be a fruitless inquiry. Lord Reid’s comments in Jamieson v Jamieson 1952 SC (HL) 44, 63, on the value of the procedure for disposing of cases on relevancy without inquiry into the facts remain just as true today as they were when they were made nearly sixty years ago.

13.  It should be understood too that there is no incompatibility between this way of disposing of a case and the pursuer’s right under article 6 of the Convention to a fair trial. This is because of the assumption that is made that the pursuer will succeed in proving all that he avers. What he can aver will depend on what he believes he can prove. He is given an ample opportunity to set out the case that he seeks to make in his averments. When the court decides to dismiss a case on the ground that the pursuer’s case is irrelevant it does so because, having studied those averments, it is satisfied that it is in as good a position to determine the issue of law on which the case depends as it would have been if it had heard all the evidence. The defenders submit that this is such a case.

The case at common law

14.  The issue of principle on which the defenders challenge the pursuers’ common law case was put into sharp focus by Mr McEachran at the outset of his argument. He said that there had been an operational failure by the defenders in circumstances where it was reasonably foreseeable that harm would flow to the deceased if they did not warn him about their meeting with Drummond. He stressed that his case was presented on a very narrow front. All he was saying was that there was a duty to warn, and that this duty arose because harm to the deceased was reasonably foreseeable. Beguilingly simple though this submission was, it raises fundamental issues about the scope of the duty that is owed to third parties by landlords, whether in the public or the private sector, whose tenants are abusive or violent to their neighbours.

15.  Three points must be made at the outset to put the submission into its proper context. The first is that foreseeability of harm is not of itself enough for the imposition of a duty of care: see, for example, Dorset Yacht Co Ltd v Home Office [1970] AC 1004, 1037 - 1038, per Lord Morris of Borth-y-Gest; Smith v Littlewoods Organisation Ltd (reported in the Session Cases as Maloco v Littlewoods Organisation Ltd) 1987 SC (HL) 37, 59, per Lord Griffiths; Hill v Chief Constable of West Yorkshire [1989] AC 53, 60, per Lord Keith of Kinkel. Otherwise, to adopt Lord Keith of Kinkel’s dramatic illustration in Yuen Kun Yeu v Attorney General of Hong Kong [1988] AC 175,192, there would be liability in negligence on the part of one who sees another about to walk over a cliff with his head in the air, and forebears to shout a warning. The second, which flows from the first, is that the law does not normally impose a positive duty on a person to protect others. As Lord Goff of Chieveley explained in Smith v Littlewoods Organisation Ltd, 76, the common law does not impose liability for what, without more, may be called pure omissions. The third, which is a development of the second, is that the law does not impose a duty to prevent a person from being harmed by the criminal act of a third party based simply upon foreseeability: Smith v Littlewoods Organisation Ltd, 77- 83, per Lord Goff.

16.  The context is therefore quite different from the case where a person is injured in the course of his employment or in a road traffic accident. In cases of that kind it can be taken for granted that the employer owes a duty of care to the person who is in his employment or that a duty is owed to other road users by the driver of a vehicle which causes an accident. If commonplace situations of that kind had to be analysed, the conclusion would be that the duty is owed not simply because loss, injury or damage is reasonably foreseeable. It is because there is a relationship of proximity between the employer and his employees and the driver and other road users. This is sufficient in law to give rise to a duty of care. The duty is created by the relationship, and the scope of the duty is determined by what in the context of that relationship is reasonably foreseeable. In such cases this is so obvious that there is no need to ask whether it is fair, or whether it is just and reasonable, that the pursuer should recover damages.

17.  In this case, as Mr McEachran pointed out, there was a relationship of proximity between the deceased and the defenders. He was their tenant, and so too was Drummond who lived next door. The defenders had accepted that they had a responsibility for the situation that had arisen as the parties’ landlords. This was why they had decided to take steps to address Drummond’s anti-social behaviour. That being so, he said, the only question was whether harm to the deceased was reasonably foreseeable as a result of the action which they were taking. He referred to passages in the speech of Lord Mackay of Clashfern in Smith v Littlewoods Organisation Ltd 1987 SC (HL) 37, 65-68, which indicated that the test was whether in all the circumstances a reasonable person in the position of the defenders would be bound to anticipate that there was a real risk that the type of damage that resulted was likely to occur. Liability, he suggested, depended on the degree to which the harmful act was reasonably foreseeable: p 68.

18.  There are other indications in the authorities that a high degree of likelihood of harm may be an appropriate limiting factor: see Dorset Yacht Co Ltd v Home Office [1970] AC 1004, 1030, per Lord Reid. In Attorney General of the British Virgin Islands v Hartwell [2004] UKPC 12; [2004] 1 WLR 1273, para 21 Lord Nicholls of Birkenhead said that the concept of reasonable foreseeability embraced a wide range of degrees of possibility, from the highly probable to the possible but highly improbable. As the possible adverse consequences of carelessness increase in seriousness, so will a lesser degree of likelihood of occurrence suffice to satisfy the test of reasonable foreseeability. In that case the police authorities had entrusted a gun to an officer who was still on probation and had shown signs of instability and unreliability. As Lord Nicholls explained in para 32, loaded hand guns are dangerous weapons and the serious risks if a gun is handled carelessly are obvious. On the other hand the precautionary steps required of a careful person are unlikely to be particularly burdensome. Where such an article is handed over, the class of persons to whom the duty of care is owed is wide and the standard of care required is high.

19.  It is not difficult to see that a duty of care was owed in the situation that arose in Attorney General of the British Virgin Islands v Hartwell [2004] 1 WLR 1273. But it is not so easy to reconcile an approach that relies generally on the likelihood of harm with the general rule that a person is under no legal duty to protect another from harm. Addressing this point in Smith v Littlewoods Organisation Ltd 1987 SC (HL) 37, at p 83, Lord Goff said:

“I wish to emphasise that I do not think that the problem in these cases can be solved simply through the mechanism of foreseeability. When a duty is cast upon a person to take precautions against the wrongdoing of third parties, the ordinary standard of foreseeability applies; and so the possibility of such wrongdoing does not have to be very great before liability is imposed….Per contra, there is at present no general duty at common law to prevent persons from harming others by their deliberate wrongdoing, however foreseeable such harm may be if the defender does not take steps to prevent it.”

In Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15; [2004] 1 WLR 1057, para 17 Lord Hoffmann endorsed these remarks when he said that reasonable foreseeability was insufficient to justify the imposition of liability upon someone who simply does nothing: who neither creates a risk nor undertakes to do anything to avert it. Mr McEachran said that Lord Goff’s observations in Smith v Littlewoods Organisation Ltd should not be followed, as his approach was not that of the majority. In any event, he said, the issue in this case was simply one of the foreseeability of harm to the deceased if no warning was given. There was already a relationship of proximity.

20.  Lord Reed examined this issue with great care, and concluded that Lord Goff’s analysis of the problem that arises in cases where harm is caused by a third party’s wrongdoing is to be preferred: 2008 SC 351, para 94. The scope of the duty in cases where the risk has been created by the defender, such as Attorney General of the British Virgin Islands v Hartwell [2004] 1 WLR 1273, may be capable of being determined by assessing the degree of likelihood of injury. But I agree with Lord Reed that Lord Goff’s approach is the one that should be applied to the problem raised by this case. We are dealing here with an allegation that it was the defenders’ duty to prevent the risk of harm being caused to the deceased by the criminal act of a third party which they did not create and had not undertaken to avert. The point at issue is whether the defenders were under a duty in that situation to warn the deceased that there was a risk that Drummond would resort to violence. I agree that cases of this kind which arise from another’s deliberate wrongdoing cannot be founded simply upon the degree of foreseeability. If the defender is to be held responsible in such circumstances it must be because, as Lord Reed suggests in para 97, the situation is one where it is readily understandable that the law should regard the defender as under a responsibility to take care to protect the pursuer from that risk.

Fair, just and reasonable

21.  As the cases have developed it has become clear that Lord Goff was right to insist that something more than foreseeability is required, and answers have been provided to the question what that should be. As to what it is, in Caparo Industries plc v Dickman [1990] 2 AC 605, 617-618, Lord Bridge of Harwich referred to a series of decisions of the Privy Council and of this House which had emphasised the inability of any single general principle to provide a practical test which can be applied to every situation to determine whether a duty of care is owed, and if so, what is its scope. He then set out the now familiar three-fold test which requires, in addition to foreseeabilty 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 Van Colle v Chief Constable of the Hertfordshire Police [2008] UKHL 50; [2008] 3 WLR 593, para 42 Lord Bingham of Cornhill said that the three-fold test laid down by the House in Caparo, by which it must be shown that harm to B was a reasonably foreseeable consequence of what A did or failed to do, that the relationship was one of sufficient proximity, and that in all the circumstances it is fair, just and reasonable to impose a duty of care towards B, was currently the most favoured test of liability.