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

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42.  Second, it was what was said at the 31 July meeting by the Council officials to Mr Drummond that apparently provoked him into inflicting on Mr Mitchell the fatal assault. Was this causative link enough, or arguably enough, to cast upon the Council a delictual duty of care to take steps to protect Mr Mitchell? This, to my mind, is the critical question that arises on this appeal.

43.  I have already remarked that the circumstances that can suffice to give rise to a duty to take positive action to protect someone from injury and transform what otherwise would be a mere omission into a breach of tortious or delictual duty are very varied but I have found the judgment of Schreiner JA, given in South Africa’s Appellate Division in Silva Fishing Corporation (Pty) Ltd v Maweza 1957 (2) SA 256, instructive. The appellant company owned fishing vessels and hired out one of them for a fishing expedition on terms that the company would receive 6s. out of every £1 in value of the fish that were caught. The vessel got into difficulties when its engine failed. The company became aware that the vessel was in distress but took no action to go to its aid or to try to effect a rescue and, after drifting for some days with its engine out of action, the vessel sank and the crew were drowned. The widow of one of the crew brought a damages action alleging that the company was in breach of its duty of care to the crew members. There was no allegation that the vessel was in any way unseaworthy or that the engine was defective in any respect (see at 257 C), and the duty, if there was one, was delictual not contractual. The defence was that the company owed no delictual duty. Schreiner JA said (at 260) that “… no liability in delict arises from mere omission …” (see also at 261 A to D) and then examined the circumstances of the case in order to answer the question whether the duty contended for, a duty to try and effect a rescue, had been cast on the company. Two features of the case persuaded Schreiner JA that that duty had been cast on the company. First, the drifting boat belonged to the company and, second, the members of the crew were not merely users of the company’s boat but were “taking part with the [company] in a profit making enterprise” (p.260 C) that involved the use of the boat. It followed, held the judge, that the company owed them a duty to provide them with a boat that would take them safely to and from the fishing grounds and had “… not only a moral but a legal duty to provide adequate alternative means of propulsion or suitable means of rescuing the crew of a drifting boat or both” (262 H). He concluded that

“The activity of the defendant in providing the boat for fishing purposes was beyond question potentially noxious to the crew, and when this situation crystallised and the defendant heard of engine failure and the boat’s distress a legal duty …. arose to act with the means at its disposal.”

44.  The company plainly did not regard themselves as having assumed responsibility for taking steps to rescue the crew from the danger they were in as a result of a breakdown of the boat’s engine, but Schreiner JA treated them as having assumed that responsibility. He did so because the boat was the company’s boat, supplied for use by the crew members for the purposes of the joint enterprise, and the boat was essential to that joint enterprise. There seems to me no equivalent in the present case to those features. The e diCouncil’s comparable obligation to Mr Mitchell was to act as a responsible landlord and to take steps to terminate Mr Drummond’s tenancy in order to remove him from the locality where he was causing such trouble. That obligation cannot, in my opinion, suffice to justify treating the Council as having assumed responsibility for Mr Mitchell’s safety. The Council did not, in my opinion, have any delictual duty to protect Mr Mitchell against assaults from Mr Drummond that those steps might possibly provoke. I can agree that it would have been prudent for one of the Council’s officers, following the 31 July meeting, to have warned Mr Mitchell to watch out for squalls. But it does not follow that a failure to have done so can be represented as a breach of a delictual duty of care. Nor can the Council’s omission to have warned the police of the situation be so represented. Neither the relationship between the Council and its tenants, Mr Mitchell and Mr Drummond, nor the actions of the Council on 31 July in giving Drummond a final warning about his conduct, can suffice, in my opinion, to cast upon the Council the delictual duty contended for. The attempt to found an action upon the Council’s failure to warn is, in my opinion, an attempt to found an action upon a mere omission. For these reasons, no more than supplemental to the reasons given by Lord Hope, and with those given by my noble and learned friends Lord Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood, with all of which I am in full agreement, I would allow the Council’s appeal on the duty of care issue.

45.  On the claim based on a alleged breach of Mr Mitchell’s Convention rights I can add nothing to and am in full agreement with Lord Hope’s reason for his conclusion that the claim must fail.

46.  I would, therefore, allow the appeal, dismiss the cross-appeal and make the order Lord Hope has proposed.

LORD RODGER OF EARLSFERRY

My Lords,

47.  In this action the widow and daughter of Mr James Mitchell, who lived in a council house at 221 Bellahouston Drive in the Mosspark area of Glasgow, seek damages from Glasgow District Council (“the Council”) for the death of Mr Mitchell. He died in August 2001 as the result of an assault by James Drummond, who lived in a neighbouring council house at 225 Bellahouston Drive. The pursuers aver that Drummond had behaved in a threatening and aggressive manner towards Mr Mitchell on numerous previous occasions and that Mr Mitchell had complained to the Council about his behaviour. In January 2001, after a breach of the peace directed at Mr Mitchell, the Council gave Drummond the notice required as a first step towards recovering possession of his house. Following a further incident involving Mr Mitchell in July 2001, council officials summoned Drummond to a meeting on 31 July. At the meeting he was told that a fresh notice would be issued for recovery of possession of his house. He became angry, but eventually calmed down and apologised. Less than an hour later, Drummond carried out the attack on Mr Mitchell which led to his death. Drummond was convicted of culpable homicide. The circumstances and the parties’ arguments are more fully described in the speech of my noble and learned friend, Lord Hope of Craighead.

48.  Of course, Mrs Mitchell and her daughter had a claim to compensation for Mr Mitchell’s death under the Criminal Injuries Compensation Scheme. In theory, they also had a delictual claim for damages against Drummond, but that would not have been worth pursuing. Instead, they seek to make the Council liable in damages for Mr Mitchell’s death at common law and under the Human Rights Act 1998. In saying that, I recognise that the pursuers may well feel that they have interests going beyond the merely pecuniary for pursuing the case against the Council, but that makes no difference to the legal issues which the House has to decide. I deal first with the pursuers’ common law claim.

49.  On record, the pursuers aver a number of different duties of care which, they allege, the Council owed to Mr Mitchell. But, at the hearing before the House, Mr McEachran QC put the pursuers’ common law case on a single basis. He concentrated on their averments that the Council were under a duty to consider Mr Mitchell’s safety when arranging the meeting for 31 July 2001, at which further steps were likely to be taken regarding the recovery of possession of Drummond’s house. They were accordingly under a duty to advise Mr Mitchell that the meeting was to take place. The pursuers further aver that, if the Council had done so, Mr Mitchell would have been on the look-out for Drummond and would have taken steps to avoid him.

50.  The alleged duty of the Council to warn Mr Mitchell about the meeting has to be seen in the context of the Council’s relationships with Mr Mitchell and with Drummond. Both were tenants of the Council. More particularly, they were secure tenants under the Housing (Scotland) Act 1987 (“the 1987 Act”). Along with the right to buy, the concept of secure tenancies was introduced by the Tenants’ Rights Etc (Scotland) Act 1980. The aim was to give public sector tenants much the same security of tenure as private sector tenants. The 1987 Act has since been replaced by the Housing (Scotland) Act 2001 but the basic concept of a secure tenancy remains the same.

51.  The rights and duties of the parties to a secure tenancy are to be found in the terms of the lease, supplemented by certain provisions - for instance, on repairs - which are imposed by the 1987 Act. Rightly, Mr McEachran did not suggest that there was any contractual term, whether express or implied, or any term imposed by the Act, which put the Council under a duty to protect one of their tenants from injury inflicted by the criminal actions of another tenant. When the position of the parties is regulated in this way by a mixture of contract and statute, prima facie there is little room for the common law of delict to impose a duty of care on the Council to provide that protection. Indeed imposing such a duty would tend to run counter to the thrust of the housing legislation towards recognising public sector tenants, in general, as responsible individuals with rights, rather than as a class of people who could not be expected to look after their own interests.

52.  As the term implies, under the 1987 Act a “secure tenant” is someone who has security of tenure. It is this secure tenure which makes the tenant’s house, in a very real sense, his castle as well as his home. The tenant can be removed from his house only on limited grounds set out in Part I of Schedule 3. These include the situation where the tenant has been guilty of conduct in, or in the vicinity of, the house which is a nuisance or annoyance: paras 7 and 8. In such cases, under section 47(1) the landlord may raise summary cause proceedings in the sheriff court for recovery of possession of the house. But, in terms of subsections (2) and (3), the landlord can only take these proceedings if he has served a notice on the tenant specifying the ground for recovery and a date, which must be at least four weeks from the date of service of the notice, after which the landlord may raise the proceedings. In any proceedings, the sheriff has power under section 48 to make an order for recovery of possession, but only if he is satisfied that it is reasonable to do so (para 7), or if other suitable accommodation will be available for the tenant (para 8). This is a slow-motion procedure to deal with anti-social behaviour. It is clearly not designed to provide an immediate response to emergencies created by a tenant’s criminal behaviour. The inference is that such emergencies are to be dealt with in some other fashion.

53.  The meeting which Drummond attended on 31 July is to be seen against this background. As already explained, notice of proceedings under the Act had been served on Drummond at the end of January. On that occasion, the pursuers aver, the Council had advised Mr Mitchell of the situation. Following the January notice, the Council had not raised proceedings, however, and that notice was due to expire in late August. The Council were considering issuing a further notice of proceedings and, at the meeting on 31 July, the officials told Drummond that a further notice was to be issued.

54.  The pursuers’ averments therefore describe actions on the part of the Council officials which were bound up with the possible exercise of the Council’s power under section 47 of the 1987 Act to raise proceedings for recovery of possession of Drummond’s house. Moreover, as the pursuers also aver, Mr Mitchell had previously urged the Council to take such proceedings. Indeed, although the point is no longer pressed, among the breaches of duty alleged against the Council on record is a failure to instigate legal proceedings for the recovery of property from violent tenants, such as Drummond, within a reasonable time after complaints had been made, and, in any event, by October 1999 at the latest.

55.  So, on the afternoon of 31 July 2001, the Council officials were taking a step towards doing what the Council were empowered to do under section 47 and what Mr Mitchell wanted the Council to do. Later that afternoon Drummond assaulted Mr Mitchell. On behalf of the Council, Mr Smith QC argued that the pursuers were seeking to make the Council liable for an omission - for failing to warn Mr Mitchell. And, of course, that is right. But the position of the Council is not exactly comparable to, say, someone watching and doing nothing as a child drowns in a shallow pool or a blind man walks into the path of an oncoming car. In such cases the observer plays no part in the events. Here, however, what the Council officials told Drummond undoubtedly led on to his assault on Mr Mitchell. According to the analysis and terminology of Hart and Honoré, Causation in the Law (2nd edition, 1985), pp 194-200, by telling Drummond at the meeting that the Council were going to issue a fresh notice of proceedings, the officials provided an opportunity for Drummond to assault Mr Mitchell. It might be preferable to say that what the officials did at the meeting provided a particular reason why, foreseeably, Drummond might choose to assault him. Or, to adopt the expression used by Lord Sumner in Weld-Blundell v Stephens [1920] AC 956, 986, what they did can be seen as having “given the occasion” for Drummond’s attack. The question therefore is whether the law should impose a duty of care on the officials when fixing such a meeting to warn someone in Mr Mitchell’s position and so give him an opportunity to take avoiding action.

56.  A convenient starting-point is to be found in the speech of Lord Goff of Chieveley in Maloco v Littlewoods Organisation 1987 SC (HL) 37, 76-77:

“Another statement of principle, which has been much quoted, is the observation of Lord Sumner in Weld-Blundell v Stephens [1920] AC 956, when he said, at p 986: ‘In general … even though A is in fault, he is not responsible for injury to C which B, a stranger to him, deliberately chooses to do.’ This dictum may be read as expressing the general idea that the voluntary act of another, independent of the defender’s fault, is regarded as a novus actus interveniens which, to use the old metaphor, ‘breaks the chain of causation.’ But it also expresses a general perception that we ought not to be held responsible in law for the deliberate wrongdoing of others. Of course, if a duty of care is imposed to guard against deliberate wrongdoing by others, it can hardly be said that the harmful effects of such wrongdoing are not caused by such breach of duty. We are therefore thrown back to the duty of care. But one thing is clear, and that is that liability in negligence for harm caused by the deliberate wrongdoing of others cannot be founded simply upon foreseeability that the pursuer will suffer loss or damage by reason of such wrongdoing. There is no such general principle. We have therefore to identify the circumstances in which such liability may be imposed.”

Lord Goff went on, at p 83, to reject the idea that the problem in that case could be solved simply through the mechanism of foreseeability. Like Lord Hope, I respectfully agree with the reasons Lord Goff gave for rejecting Lord Mackay of Clashfern’s approach, based on how foreseeable the unlawful conduct of the third party might be. In the final paragraph of his speech, at p 84, Lord Goff observed:

“It is very tempting to try to solve all problems of negligence by reference to an all-embracing criterion of foreseeability, thereby effectively reducing all decisions in this field to questions of fact. But this comfortable solution is, alas, not open to us. The law has to accommodate all the untidy complexity of life; and there are circumstances where considerations of practical justice impel us to reject a general imposition of liability for foreseeable damage…. In truth, in cases such as these, having rejected the generalised principle, we have to search for special cases in which, upon narrower but still identifiable principles, liability can properly be imposed.”

The House has to decide whether, in this case, there is some identifiable principle, narrower than the mere foreseeability of harm to Mr Mitchell, upon which liability can properly be imposed on the Council.

57.  As Lord Goff explained, in some circumstances a defender who provides an opportunity for a third party to harm the pursuer in a foreseeable way must take reasonable care to prevent the harm. If I negligently collide with a cyclist who is knocked unconscious, I must surely take reasonable care to move her from the path of oncoming vehicles. Whether I must also take reasonable care to prevent her belongings from being stolen may be more debatable. Similarly, a decorator who leaves the door of an empty house unlocked is indeed liable if a thief then enters and steals, because the main point, at least, of the decorator’s duty to lock the premises is to prevent theft: Stansbie v Troman [1948] 2 KB 48. A police authority owes a duty of care to the public at large not to entrust a gun to a probationer officer whose family circumstances might make him volatile and unstable. So the authority was liable to someone whom the officer shot in the course of an incident when he was intent on using the gun to maim his former partner and her boyfriend: Attorney General of the British Virgin Islands v Hartwell [2004] 1 WLR 1273.

58.  In all these situations the defender’s act which provides the opportunity for the third party to injure the claimant is itself wrongful. As Lord Sumner pointed out in the passage from Weld-Blundell v Stephens quoted by Lord Goff, that is not enough to make for liability in delict for the harm which a third party subsequently deliberately chooses to inflict. But it is, at least, a start. In the present case, by contrast, not only were the Council officials not committing any wrong by holding the meeting with Drummond, they were taking steps towards exercising a statutory power given to the Council as landlords, to be used in the interests of good order in the neighbourhood of their houses. It was these entirely lawful and legitimate steps by the Council officials which provided the occasion for Drummond choosing to assault Mr Mitchell. No delictual liability can arise out of those legitimate steps as such. Nor, given the short time between the meeting and the assault, can the pursuers base their claim on any alleged duty to warn Mr Mitchell which would have arisen when the meeting took place. So they have to aver that, since the Council knew that Drummond had threatened to harm Mr Mitchell and was liable to be hostile to him after the meeting, they had a duty to warn him at the stage when they were setting things in motion by inviting Drummond to the meeting.

59.  In certain respects the case is reminiscent of Bullock v Tamiami Trail Tours Inc (1959) 266 F 2d 326. The case dates from the 1950s when racial segregation was rife in parts of Florida. A black Jamaican minister and his wife, who looked white, were on a visit to the United States, where they embarked on a long-distance bus journey. While the bus was travelling through Taylor County, Florida, the couple sat in the front part, which was reserved for white passengers. When asked by the driver to move, they refused to do so. The bus company had issued instructions to drivers that, in such cases, they were not to call the police. The police were to be called only if a disturbance ensued. At a stop in a town in the area, the bus driver spoke to some police officers in the bus station restaurant and told them about the (apparently) mixed-race couple sitting up in the front, adding that there was nothing he could do about it. The police officers said that their hands were tied. This conversation was overheard by a man at the same table as the police officers, who then bought a ticket, boarded the bus, beat up the husband and slapped the wife. The couple sued the bus company for damages. The Fifth Circuit Court of Appeals held that a carrier, which could reasonably foresee injury to its passenger caused by a fellow passenger, in time to prevent its occurrence, was subjected to the highest degree of care to its passenger either to protect him from, or to warn him of, the danger. The court went on to hold the company liable on the ground that “the danger should reasonably have been foreseen by Tamiami in time to act with the utmost care to avoid injury to its passengers, particularly by warning them and by not doing foolish things to increase their danger...".

60.  In part, the court proceeded on the basis that the company should have warned the couple of the potential problems before they ever set off on their journey through Florida. Forewarned, the couple would have known of the local mores and the risks which they would therefore face on that part of the trip. But the court also focused on the conversation between the bus driver and the police officers: “the driver should not, either willfully or negligently, have informed the assailant of the Bullocks’ position on the bus and of their apparent color and lack of color.” In that part of Florida, a violent reaction was not unforeseeable. So the bus company was liable on the basis that the driver had negligently and foolishly increased the danger of an assault and had not taken steps to prevent it.

61.  The case is perhaps instructive precisely because of the very factors on which the court relied to find the bus company liable. The company was held to be under a general duty to protect a passenger from a foreseeable assault by a fellow passenger. Under Scots law there is no equivalent general duty on a landlord to protect one tenant from an assault by the tenant of another house. Even assuming, without deciding, that a comparable duty of care might lie on a bus operator under Scots law, the difference is understandable since passengers on a bus are shut up together, while tenants can more easily protect themselves by taking avoiding action. In addition, the public conversation between the bus driver and the police officers in the restaurant, which triggered the assault, served no legitimate purpose, since he had been instructed not to report such situations to the police. By contrast, the meeting between the Council officials and Drummond was preparatory to a possible, legitimate, exercise of the Council’s power under section 47 to recover possession of his house because of his behaviour.

62.  Parliament chose to give the Council a power to raise proceedings in such circumstances; it chose not to impose a duty on the Council to raise them. So the mere creation of that statutory power cannot be regarded as imposing a common law duty to exercise the power: Stovin v Wise [1996] AC 923; Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057. In this case it can readily be seen that any such duty would be inappropriate since the Council have to consider a whole range of factors, including the possible need to rehouse the disruptive tenant and so perhaps replicate the difficulties elsewhere, before deciding whether to take proceedings. Suppose, then, that the Council had decided not to exercise their power to recover possession of Drummond’s house, even though it was foreseeable that, if he continued to stay there, he might assault Mr Mitchell. If irrational, the decision might have been subject to judicial review. But if Drummond had indeed subsequently assaulted Mr Mitchell near his house, the Council could not have been held liable to the pursuers in delict on the basis that they had owed him a duty of care to take proceedings under section 47 to recover possession of Drummond’s house and so reduce the risk of him attacking Mr Mitchell there.

63.  But here the pursuers are arguing for the imposition of a duty of care to Mr Mitchell at a stage before the Council had even reached the point at which they would decide whether or not to exercise their power to take proceedings. It so happens that the Council chose to invite Drummond to a meeting. So the contention is that the officials were under a duty, when fixing such a meeting, to advise Mr Mitchell. In other cases, the Council might go straight to issuing a warning of proceedings. Then, presumably, the supposed duty of care would arise when the warning was to be issued. In reality, the greatest risk of violence would occur when the Council exercised their power under section 47 and the sheriff granted an order under section 48. Parliament did not see fit, however, to impose any requirement on councils or sheriffs to protect other tenants, whether by warnings or otherwise, from possible violence at that stage. Nor has the Scottish Parliament imposed such a requirement under the Housing (Scotland) Act 2001. The presumption must be that both legislatures have proceeded on the basis that any possible criminal violence resulting from the operation of these powers is to be dealt with, in the usual way, by the police and criminal justice system. The pursuers point to no undertaking or other circumstance which would show that, exceptionally, the Council had made themselves responsible for protecting Mr Mitchell. That being so, it would be inconsistent with the scheme of the legislation, and neither fair, nor just nor reasonable, to impose a duty on the Council to warn Mr Mitchell of what they were proposing to do, whether at a preliminary stage or when actually exercising their section 47 powers. In short, I see no identifiable principle on which it would be appropriate to impose delictual liability on the Council for the loss and injury caused to the pursuers by Drummond’s criminal act, simply because they did not warn Mr Mitchell that their meeting with Drummond was taking place. The pursuers’ common law case is accordingly irrelevant.

 
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