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

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22.  Lord Bridge acknowledged in Caparo Industries plc v Dickman [1990] 2 AC 605, 618 that the concepts of proximity and fairness amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope. He said that the law had moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the various duties of care which the law imposes. These are cases where, as Lord Reed suggested in para 97, the imposition of a duty of care is readily understandable.

23.  It is possible to identify situations of that kind. One is where the defender creates the source of danger, as in Haynes v Harwood [1935] 1 KB 146, where a van drawn by horses in a crowded street was left unattended and bolted when a boy threw a stone at them. Attorney General of the British Virgin Islands v Hartwell [2004] 1 WLR 1273 may be seen as a case of this kind. Another is where the third party who causes damage was under the supervision or control of the defender, as in Dorset Yacht Co Ltd v Home Office [1970] AC 1004 where the Borstal boys who escaped from the island and damaged the plaintiff’s yacht were under the control and supervision of the officers who had retired to bed and left the boys to their own devices. Another, which is of particular significance in this case, is where the defender has assumed a responsibility to the pursuer which lies within the scope of the duty that is alleged: Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335, 350, per Lord Steyn; Swinney v Chief Constable of Northumbria Police Force [1997] QB 464. Other examples of that kind which may be cited are Stansbie v Troman [1948] 2 KB 48, where a decorator who was working alone in a house went out leaving it unlocked and it was entered by a thief while he was away; W v Essex County Council [2001] 2 AC 592, where the parents of an adopted child had received assurances from the council that they would not be allocated a child who was known to be, or suspected of being, a sexual abuser; and the circumstances that were reviewed in R (Amin) v Secretary of State for the Home Department [2003] UKHL 51; [2004] 1 AC 653, where a prisoner was placed in a cell with another prisoner with a history of violence who perpetrated a racist attack on him from which he died. See also Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360. I am grateful to my noble and learned friends Lord Scott of Foscote and Lord Rodger of Earlsferry for their analysis of the cases from South Africa and Florida which their researches have revealed, as they illustrate the same point: assumption of responsibility in Silva Fishing Corporation (Pty) Ltd v Maweza [1957 (2)] SA 256; foolishly increasing the danger in Bullock v Tamiami Trail Tours Inc (266 F 2d 326).

24.  Mr McEachran said that, as Caparo Industries plc v Dickman [1990] 2 AC 605 was a pure economic loss case, it ought not to be followed in a case of this kind which is one of personal injury. But the origins of the, fair, just and reasonable test show that its utility is not confined to that category. It can be traced back to the decision of the Court of Appeal in that case [1989] QB 653, where Bingham LJ at p 679, adopting Lord Keith of Kinkel’s observation in Governors of Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd [1985] AC 210, 241, that in considering whether or not a duty of care of particular scope was incumbent upon a defendant it was material to take into consideration whether it was just and reasonable that it should be so, also used the expression “just and reasonable” - an observation on which he said in Simaan General Contracting Co v Pilkington Glass Ltd (No 2) [1988] QB 758, 773, emphasis was increasingly being placed. It can be traced back further still to the speech of Lord Morris of Borth-y-Gest in Dorset Yacht Co Ltd v Home Office [1970] AC 1004, 1039 where, in a passage that Lord Keith quoted in Peabody, pp 240-241, he said that it would be “fair and reasonable” that a duty of care should exist in that case, where absconders from a Borstal institution damaged the plaintiff’s yacht while the officers who ought to have been supervising them were asleep. Taylor LJ gathered these expressions together in the formula “fair, just and reasonable": [1989] QB 653, 696. Counsel for the appellants then adopted that expression in the House of Lords at [1990] 2 AC 605, 609, which the House in its turn accepted.

25.  Mr McEachran also said that it was unclear whether the three-fold test was part of the law of Scotland, at least in cases where damages were claimed for personal injury. It had been adopted by Lord Hamilton in Gibson v Orr 1999 SC 420. But the only case that he had been able to cite in support was Forbes v City of Dundee District Council 1997 SLT 1330, where the point had been conceded, and in the Inner House in British Telecommunications plc v James Thomson & Sons (Engineers) Ltd 1997 SC 59 Lord Morison, in his dissenting opinion, had described the “fair, just and reasonable” test as uncertain and wide-ranging. In Perrett v Collins [1998] 2 Lloyd’s Rep 255, 263 Hobhouse LJ too expressed his misgivings. He said that the concept of justice and fairness was vague: the law could not be remade for every case. The test is indeed broadly expressed. But I see no good reason why, as a general guide to what is required, it should not be regarded as part of Scots law. It is really no more than an expression of the idea that lies at the heart of every judgment about legal policy. If liability is to attach, it should be in situations where this is readily understandable because, looking at both sides of the argument, it is fair and reasonable that there should be liability. Smith v Chief Constable of Sussex Police, which is reported together with Van Colle v Chief Constable of the Hertfordshire Police [2008] 3 WLR 593, provides a recent example of its application in a case of personal injury. It was adopted without criticism by Lord Mackay of Clashfern when he spoke for the House in British Telecommunications plc v James Thomson & Sons (Engineers) Ltd 1999 SC (HL) 9, 12. It was applied by Lord Brodie in West v Castlehill LLP [2008] CSOH 182, para 23 in a situation where he would not have regarded an analysis based simply on foreseeability to be adequate. There is no principle of Scots law that contradicts it, and the fact that the law of liability for negligence has developed on common lines both north and south of the Border provides powerful support for the defenders’ argument that it should be applied in this case.

This case

26.  Lord Bridge was careful to emphasise in Caparo Industries plc v Dickman [1990] 2 AC 605 that the question to which the three-fold test must be directed is not limited to the question whether there is a duty of care at all. It is to be applied too to the question whether the situation gives rise to a duty of care of a given scope. It is the scope of the duty that lies at the centre of the argument in this case. The defenders do not deny that they owed a duty of care to their tenants in the exercise of their contractual duties as landlords, it having been accepted that this does not extend to the exercise of discretionary powers under the statute: Hussain v Lancaster City Council [2000] QB 1. But this case falls outside the ambit of their contractual duty. In short the question is whether, acknowledging that the defenders were the deceased’s neighbour’s landlords, that relationship was such that it is fair, just and reasonable that they should be held liable in damages for the omissions to warn that are relied on in this case. As Taylor LJ observed in the Court of Appeal in Caparo Industries plc v Dickman [1989] QB 653, 703, the question is one of fairness and public policy.

27.  The assertion that there was a duty to warn is deceptively simple. But the implications of saying that there was a duty to warn in this case are complex and far reaching. This, it may be said, is a clear case where there had been threats to kill and Drummond’s behaviour suggested that, if provoked, he might give effect to them. But if there was a duty to warn in this case, must it not follow that there is a duty to warn in every case where a social landlord has reason to suspect that his tenant may react to steps to address his anti-social behaviour by attacking the person or property of anyone he suspects of informing against him? And if social landlords are under such a duty, must social workers and private landlords not be under the same duty too? In this case it is said that the duty was owed to the deceased. But others in the neighbourhood had complained to the defenders about Drummond’s behaviour. Was the duty to warn not owed to them also? It is said that there was a duty to keep the deceased informed of the steps that they proposed to take against Drummond, and in particular to warn him that a meeting had been arranged for 31 July. This suggests 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. The more attentive they were to their ordinary duties as landlords the more onerous the duty to warn would become.

28.  These problems suggest that to impose a duty to warn, together with the risk that action would 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 the incidence of anti-social behaviour. The progress of events in this case shows that the defenders were doing their best to persuade Drummond to stop abusing his neighbours. These attempts might have worked, as no doubt they have done in other cases. Far better that attempts should be made to cure these problems than leave them unsolved or to be dealt with, inevitably after the event, by the police. As in the case of the police, it is desirable too that social landlords, social workers and others who seek to address the many behavioural problems that arise in local authority housing estates and elsewhere, often in very difficult circumstances, should be safeguarded from legal proceedings arising from an alleged failure to warn those who might be at risk of a criminal attack in response to their activities. Such proceedings, whether meritorious or otherwise, would involve them in a great deal of time, trouble and expense which would be more usefully devoted to their primary functions in their respective capacities: see Lord Brown of Eaton-under-Heywood’s observations in Van Colle v Chief Constable of the Hertfordshire Police [2008] 3 WLR 593, para 133. There are other considerations too. Defensive measures against the risk of legal proceedings would be likely to create a practice of giving warnings as a matter of routine. Many of them would be for no good purpose, while others would risk causing undue alarm or reveal the taking of steps that would be best kept confidential.

29.  As I have already noted, in Caparo Industries plc v Dickman [1989] QB 653, 703, Taylor LJ summed the matter up by saying that fairness and public policy were the tests. Public policy was at the root of the decision in Hill v Chief Constable of West Yorkshire [1989] AC 53 about the scope of the duty owed by the police which the House followed in Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24; [2005] 1 WLR 1495 and again in Smith v Chief Constable of Sussex Police: see Van Colle v Chief Constable of the Hertfordshire Police [2008] 3 WLR 593. I would take the same approach to this case. The situation would have been different if there had been a basis for saying that the defenders had assumed a responsibility to advise the deceased of the steps that they were taking, or in some other way had induced the deceased to rely on them to do so. It would then have been possible to say not only that there was a relationship of proximity but that a duty to warn was within the scope of that relationship. But it is not suggested in this case that this ever happened, and Mr McEachran very properly accepted that he could not present his argument on this basis. I would conclude therefore that 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 is made against them is irrelevant. I would also hold, as a general rule, that a duty to warn another person that he is at risk of loss, injury or damage as the 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.

The case under the 1998 Act

30.  Section 6(1) of the Human Rights Act 1998 provides that it is unlawful for a public authority to act in a way that is incompatible with a Convention right. The defenders are what is known as a core public authority. So there is no doubt that the pursuers will be entitled to obtain a judicial remedy against them under section 8 of that Act if they can establish that they acted in a way that is incompatible with the deceased’s Convention rights. The Convention right which they invoke is that guaranteed by the first sentence of article 2, which provides that everyone’s right to life shall be protected by law. This provision enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction: Osman v United Kingdom (1998) 29 EHRR 245, para 115. The question is whether an act which is incompatible with that aspect of the right is disclosed by their averments.

31.  The test that the averments must satisfy is a high one. It was accepted in Osman that article 2 of the Convention may imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual: para 115. But the court went on to say this in para 116:

“For the court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising.”

It defined the circumstances in which the obligation arises later in the same paragraph:

“it must be established to [the court’s] satisfaction 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.”

32.  The pursuers seek to meet the “real and immediate” test. In article 14 of the Condescendence they aver that the defenders “knew or ought to have known that there was a real and immediate risk to James Dow Mitchell’s life on 31 July 2001.” This is, to say the least, a bold averment. The defenders are entitled to notice of the basis on which it is to be proved. The pursuers assert that “the defenders” knew that there was a real and immediate risk. But the defenders can only know something through the mind of one or more of their officials. The pursuers do not say who these officials were or by whom or how this knowledge was demonstrated. So one can assume that actual knowledge is not something that they believe they can prove. Their averment must be tested by the weaker alternative. Have the pursuers averred a basis elsewhere in their pleadings for alleging that the defenders “ought to have known” that there was a real and immediate risk to the deceased’s life on 31 July 2001?

33.  As Lord Bingham of Cornhill said in Van Colle v Chief Constable of the Hertfordshire Police [2008] 3 WLR 593, para 32, in its formulation of the “real and immediate” test the Strasbourg court, in para 116 of its Osman judgment, laid emphasis on what the authorities knew or ought to have known at the time. One must beware of the dangers of hindsight. The court must try to put itself in the same situation as those who are criticised were in as events unfolded before them. These events must, of course, be viewed in their whole context. The long history of Drummond’s behaviour must be taken into account as well as what took place at the meeting on 31 July 2001. Two facts stand out from this history. The first is that Drummond had threatened to kill the deceased on countless occasions during the past six and a half years. But he had never actually used violence against him, apart from the incident in December 1994 when he damaged his door and broke his windows. The second is that, while Drummond lost his temper at the meeting and was abusive, he is not said to have uttered any threats against the deceased or to have been armed with any kind of weapon. In short, he did not say or do anything to alert the defenders to a risk that he would attack the deceased when he got home, let alone that he would inflict injuries from which he might die.

34.  I agree with Lord Reed that there is no basis in the pursuers’ averments for saying that the defenders ought to have known that, when Drummond left the meeting, there was a real and immediate risk to the deceased’s life: para 144. Taking their averments at their highest, there was nothing to suggest that the deceased’s life was really at risk at all, let alone that any such risk was immediate. Lady Paton would have allowed a proof before answer. Relying on dicta in the Court of Appeal in Van Colle v Chief Constable of the Hertfordshire Police [2007] EWCA Civ 325; [2007] 1 WLR 1821, she said that it was not possible to rule out the possibility that the defenders themselves had brought about a situation in which a lower threshold of risk might be appropriate. But, as I said in that case when it subsequently reached the House of Lords, the way the test was expressed in Osman offers no encouragement to the idea that where the positive obligation is invoked, as it is in this case, the standard to be applied may vary from case to case: [2008] 3 WLR 593, para 70. The standard is constant and not variable, and its limits must be observed in every case where it is alleged that a public authority has violated its positive obligation under the article. Assuming all that the pursuers offer to prove can be established, this case falls well short of that standard. There was nothing to suggest that such a violent attack on the deceased could have been predicted when Drummond left the meeting on 31 July 2001. The situation disclosed by this case is far removed from those referred to in Savage v South Essex Partnership NHS Trust [2008] UKHL 74; [2009] 2 WLR 115, where the Strasbourg Court has indicated that there may be a positive operational duty to protect particular individuals. The statutory case too is irrelevant.

Conclusion

35.  I would allow the appeal and dismiss the cross-appeal. I would recall the interlocutor of the Extra Division and restore the interlocutor of the Lord Ordinary.

LORD SCOTT OF FOSCOTE

My Lords,

36.  On 31 July 2001 Mr Mitchell was violently assaulted by his neighbour James Drummond and died from his injuries. Both Mr Mitchell and Mr Drummond were tenants of Glasgow City Council and the latter’s propensity for violence and anti-social behaviour towards, in particular, Mr Mitchell were well-documented and known to the Council. The final and fatal violence of 31 July followed a meeting on that day between Council officials and Mr Drummond at which the Council officials had informed Mr Drummond that a notice of proceedings to recover possession of his council dwelling would be served on him and that any continuance of his anti-social behaviour could lead to his eviction. The history is more fully described by my noble and learned friend Lord Hope of Craighead in paragraphs 3 to 6 of his opinion.

37.  In the action which has now reached your Lordships’ House Mr Mitchell’s widow and daughter seek to hold the Council liable in damages for “loss, injury and damage as a result of fault and negligence …” of the Council. The damages claim is based also on the contention that the Council “… acted unlawfully and in a way incompatible with [Mr Mitchell’s] Convention right to life": see paras 1 and 2 of the Pleas in Law for Pursuers.

38.  It is not, of course, suggested that the Council or its officials were in any way complicit with Mr Drummond in his attack on Mr Mitchell, nor that in summoning Mr Drummond to the 31 July meeting and informing him of the notice proposed to be served and the likely consequences if his anti-social behaviour were to continue the Council or its officers were in breach of any duty they owed to Mr Mitchell. Indeed, it might be said that the Council had a duty to Mr Mitchell as his landlord to take those steps. What is complained of, and is alleged to be a breach of a common law duty of care owed by the Council to Mr Mitchell, is that the Council neither warned Mr Mitchell that the meeting was about to be held nor, following the meeting, warned him that it had been held, thereby denying Mr Mitchell the opportunity, forewarned, of taking precautions to safeguard himself from the possibly violent reactions of Mr Drummond. It is the Council’s omission to warn that constituted the essential core of the submissions of Mr McEachran QC in support of the action.

39.  It is a feature of the common law both of England and Wales and of Scotland that liability in negligence is not imposed for what is sometimes described as a “mere” omission (see eg. Salmond & Heuston on the Law of Torts 21st Ed. (1996), p.219). Lord Atkin in Donoghue v Stevenson [1932] AC 562 referred at 580 to the duty to

“…take reasonable care to avoid acts or omissions which you can reasonably forsee would be likely to injure your neighbour” (emphasis added).

Yet it is accepted in both jurisdictions that the Pharisee who passed by the injured man on the other side of the road would not, by his failure to offer any assistance, have incurred any legal liability. A legal duty to take positive steps to prevent harm or injury to another requires the presence of some feature, additional to reasonable forseeability that a failure to do so is likely to result in the person in question suffering harm or injury. The Pharisee, both in England and Wales and in Scotland would have been in breach of no more than a moral obligation.

40.  The requisite additional feature that transforms what would otherwise be a mere omission, a breach at most of a moral obligation, into a breach of a legal duty to take reasonable steps to safeguard, or to try to safeguard, the person in question from harm or injury may take a wide variety of forms. Sometimes the additional feature may be found in the manner in which the victim came to be at risk of harm or injury. If a defendant has played some causative part in the train of events that have led to the risk of injury, a duty to take reasonable steps to avert or lessen the risk may arise. Sometimes the additional feature may be found in the relationship between the victim and the defendant : (eg. employee/employer or child/parent) or in the relationship between the defendant and the place where the risk arises (eg. a fire on the defendant’s land as in Goldman v Hargrave [1967] 1 AC 645). Sometimes the additional feature may be found in the assumption by the defendant of responsibility for the person at risk of injury (see Smith v Littlewoods Organisation Ltd [1987] AC 241 per Lord Goff of Chieveley at 272). In each case where particular circumstances are relied on as constituting the requisite additional feature alleged to be sufficient to cast upon the defendant the duty to take steps that, if taken, would or might have avoided or lessened the injury to the victim, the question for the court will be whether the circumstances were indeed sufficient for that purpose or whether the case remains one of mere omission.

41.  There are two features of the circumstances relating to or leading up to the fatal attack by Mr Drummond on Mr Mitchell that may be thought relevant to the question whether a duty to act with a view to the protection of Mr Mitchell was cast upon the Council. First there is the landlord/tenant relationship between the Council and Mr Mitchell and between the Council and Mr Drummond. The relationship between the Council and Mr Mitchell undoubtedly gave rise to duties owed by the Council to him. A covenant for quiet enjoyment and the obligations of the landlord thereunder is an obvious example. But a landlord’s covenant for quiet enjoyment does not protect his tenant against criminal acts of third parties (see Halsbury’s Laws Vol 27(1) para.512) whether or not the third parties also are tenants of the landlord. The landlord/tenant relationship goes nowhere, in my opinion, to cast a legal duty on the Council to protect Mr Mitchell from the risk of being assaulted by Mr Drummond.

 
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