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

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64.  I turn now to the pursuers’ claim that the Council violated Mr Mitchell’s article 2 Convention rights.

65.  It is trite law that, in certain circumstances, article 2 imposes a positive obligation on States to protect the lives of those within their jurisdiction. At its most fundamental, as the European Court held in Osman v United Kingdom (1998) 29 EHRR 245, 305, para 115, article 2 requires a State to put in place

“effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions.”

In Scotland there are, of course, criminal laws to deter the commission of offences against the person, police forces to prevent such crimes and to detect wrongdoers, and courts to impose penalties. In this way the United Kingdom complies with its basic positive obligation under article 2 with respect to people in Scotland.

66.  The obligation of the United Kingdom under article 2 goes wider, however. In particular, where a State has assumed responsibility for an individual, whether by taking him into custody, by imprisoning him, detaining him under mental health legislation, or conscripting him into the armed forces, the State assumes responsibility for that individual’s safety. So in these circumstances police authorities, prison authorities, health authorities and the armed forces are all subject to positive obligations to protect the lives of those in their care. The authorities must therefore take general measures to employ and train competent staff and to adopt appropriate systems of work that will protect the lives of the people for whose welfare they have made themselves responsible. These are general obligations, not directed at any particular individual, but designed to protect all those in the authorities’ care. If, however, an authority fails to fulfil one of these obligations and someone in their care dies as a result, there will be a violation of his or her article 2 Convention rights. Authorities which are under these general obligations to persons in their care may also come under a distinct, additional, “operational” obligation to take special preventive measures to protect a particular individual in their care. That operational obligation arises only where the authority knows, or ought to know, of a “real and immediate risk” to the life of the particular individual. I refer generally to the discussion of these matters in the speeches in Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74; [2009] 2 WLR 115.

67.  The pursuers aver that the Council knew or ought to have known that there was a real and immediate risk to Mr Mitchell’s life on the day he was killed. As Lord Hope has explained, that bare averment is unsupported by any more specific averments of circumstances which would give it content. Indeed, according to the pursuers’ averments, the real and immediate threat to Mr Mitchell occurred about an hour after the meeting, when no Council officials would be present or be under any duty to be present. But, even leaving that matter on one side, in my view, the pursuers’ article 2 case is fundamentally irrelevant.

68.  Mr Mitchell lived in the area covered by the Strathclyde Police Force. They were the public authority with the duty, and with the resources, to prevent criminal violence there. It was undoubtedly their duty to have in place appropriate systems for preventing criminal violence in Mosspark. Similarly, if they had been made aware of a real and immediate threat to Mr Mitchell’s life in their area, Strathclyde police officers would have been under a duty to take the appropriate steps, in the circumstances, to prevent it. But that operational duty would have arisen only as part of the overall duty of the police force to prevent criminal violence.

69.  The position of the Council is quite different. Mr Mitchell was a secure tenant of the Council. And, of course, if the Council had allowed their housing stock to fall into disrepair, so that tenants were at risk of suffering life-threatening injuries or of becoming seriously ill, the Council could have been in breach of article 2. But nothing like that is alleged here. What is said is that the Council were under a positive duty to protect Mr Mitchell from a criminal attack by Drummond. The basis of the claim is that Mr Mitchell had this article 2 Convention right against the Council simply because both he and Drummond were tenants of houses owned by the Council. But, as a secure tenant, Mr Mitchell was not in the custody or control of the Council. To judge by the pursuers’ averments, he was not ill or otherwise in need of care because of old age. He was not living in Council sheltered accommodation or in a Council retirement home: he was living in an ordinary house. The Council had not deprived him of his freedom of movement or action or, in any other way, assumed responsibility for his safety. Like anyone else, Mr Mitchell was free to come and go as he pleased, and to act as a responsible adult. Indeed, as already mentioned, the whole policy behind the introduction of secure tenancies was to free public sector tenants from some of the controls to which they had previously been subjected and to emphasise their independence as individuals with rights over their own homes. I therefore see nothing in the relationship of landlord and secure tenant to give rise to any positive article 2 obligation on the part of the Council to protect Mr Mitchell’s life. The public authority with the positive duty to protect Mr Mitchell from criminal assaults by Drummond was Strathclyde Police, not the Council. That position did not change just because the fatal assault occurred when, as landlords, the Council took steps towards exercising their statutory power to recover possession of Drummond’s house.

70.  Indeed, any other conclusion would have significant implications for councils and housing associations and similar organisations, with duties to provide houses for people who may well not be desirable tenants. These bodies might come under a duty to take appropriate general steps - whether in designing or modifying their housing stock, or else by setting up CCTV or other systems for gathering information about what was going on in their neighbourhood, or by instituting patrols - to prevent outbreaks of criminal violence among their tenants. As it is, councils and housing associations etc do not have, and are not meant to have, the resources, staff or powers to take effective steps to prevent such crimes. On the contrary, they are resourced on the basis that they are landlords operating within a society where the responsibility for preventing violent crime lies with the police, who, in their turn, are given the resources, training and powers to do the job. Costly duplication of the work of the police is neither necessary nor indeed desirable.

71.  It follows that, even if the Council officials had been aware of a real and immediate threat to Mr Mitchell’s life from Drummond, they would not have been under any article 2 obligation to prevent it. The averments of a breach of Mr Mitchell’s article 2 Convention rights by the Council are accordingly irrelevant.

72.  For these reasons, and for the reasons given by my noble and learned friends, Lord Hope of Craighead, Lord Scott of Foscote and Lord Brown of Eaton-under-Heywood, I consider that the position in law is clear on the pleadings and that nothing would be gained by allowing a proof before answer. I would therefore allow the appeal, dismiss the cross-appeal, and make the order proposed by Lord Hope.

BARONESS HALE OF RICHMOND

My Lords,

73.  I too agree that this appeal should be allowed and the cross appeal dismissed. Your lordships have given a multitude of reasons for rejecting the common law claim and I believe that I agree with almost all of them. Three points stand out.

74.  The first is that we are all agreed that, both north and south of the border, foreseeability of harm is not always enough to impose a duty of care. Mr McEachran QC, for the pursuers, argued their case with great charm. One can quite see why Mr Mitchell’s widow and daughter think the council at least partly to blame for the grievous loss which they have suffered. Whatever might be the case south of the border, argued Mr McEachran, the law in Scotland was based on principle; and that principle is the foreseeability of harm to one’s neighbour, set out by Lord Atkin in Donoghue v Stevenson [1932] AC 562, 580. Donoghue v Stevenson replaced the former categories of liability with a single, over-arching principle, henceforth to be applied to new factual situations as they arose. Admittedly, that was a case of physical harm. Different considerations might be appropriate where purely financial loss was caused. But this too is a case of physical harm, the most serious physical harm there can be. Categories should be a thing of the past. Considerations of whether it would be “fair, just and reasonable” to impose liability, introduced to limit the scope of liability for purely economic loss, simply did not arise.

75.  In common with your lordships, however, I agree that, even in the case of physical harm, there are some qualifications to the foreseeability principle. An illustration, albeit not on all fours but nonetheless instructive, can be found in another case from Scotland MacFarlane v Tayside Health Board [2000] 2 AC 59. It is entirely foreseeable that, if a doctor negligently performs a sterilisation operation or fails to warn that such an operation does not guarantee infertility, an unwanted child may result. An unwanted pregnancy and childbirth are physical harms to the mother. They also bring serious consequential losses. Some may see these as purely financial, the cost of feeding, clothing, housing and caring for the child; others would see them as physical, the physical tasks of looking after and bringing up the child. It matters not how they are seen, because the foreseeable financial losses consequent on a physical injury have always been recoverable in addition to compensation for the injury itself. But in McFarlane’s case, the House of Lords unanimously held that it was not fair, just and reasonable for such losses to be recovered. That principle curtailed the scope of the duty which would otherwise have arisen on conventional foreseeability principles (see, eg, Lord Hope at p 97E).

76.  The second point upon which we are all agreed is that foreseeability alone is not enough to impose a duty to safeguard a person from the criminal acts of third parties. It is a necessary but not a sufficient condition. There must be something more. Lord Rodger in paragraph 57 and Lord Brown in paragraph 82 of their opinions have given some examples, none of which applies in this case. In essence, there must be some particular reason why X should be held to have assumed the responsibility for protecting Y from harm caused by the criminal acts of Z. I also share the view of Lord Rodger, in paragraph 55, that this is not a pure omission case. A driver who takes to the roads and thus is an actor in the drama is liable for the things which he fails to do as well as for the things which he does. His failure to keep a proper lookout, or to indicate when he proposes to change direction, is an omission. But he took the action of propelling his car in a particular way. Thus it could be said that the council were actors in this drama. They took the action of summoning Mr Drummond to warn him of what they proposed to do if he did not mend his ways. Just as the driver should not change direction without taking steps to safeguard other road users from harm, it could be said, the council should not take action against one tenant without taking steps to safeguard his neighbours from harm. Hence, it is not quite enough to say that the complaint of a failure to warn is a complaint of a pure omission. But the question remains whether it is fair, just and reasonable to impose such a safeguarding duty upon the council.

77.  The third point on which we are all agreed is that it is not fair, just and reasonable to impose such a duty in a case such as this, where perfectly proper actions are taken for the general good of the community but may provoke another to commit a criminal act. Lord Hope, in paragraphs 27 and 28 of his opinion, and Lord Rodger, in paragraph 62 have given all the reasons why this would not be fair, just and reasonable. The advent of secure public sector tenancies has meant that social landlords have had to be given powers to deal with anti-social behaviour by their tenants. It is in everyone’s interests that those powers should be properly and responsibly used. But equally there are difficult choices to be made, given that social landlords cannot pick and choose their tenants with quite the freedom that private landlords can. So no-one now argues that there is a duty to use their powers in a particular way. If they do take action, it may be good practice to keep other tenants or even neighbours informed of the steps being taken, but landlords will also be concerned about the privacy interests of all concerned. They certainly should not be deterred from the responsible use of their powers by the threat of liability for the harm caused by the criminal acts of those anti-social tenants. Their anti-social tenants are presumed to be grown-ups with minds of their own who can make their own choices about how to behave. The liability is theirs and the fact that they may have no means to pay is not by itself a good enough reason to transfer the liability to someone else.

78.  This is but the latest in a long line of cases from Scotland which have played such an important part in shaping the law of negligence for the whole of the United Kingdom. The Human Rights Act 1998 is, of course, unquestionably the law for the whole of the United Kingdom and must be read and given effect in the same way both north and south of the border. I too venture to think that, had the Extra Division had the benefit of the decision of this House in Van Colle v Chief Constable of Hertfordshire Police [2008] UKHL 50, [2008] 3 WLR 593, then they would have been unanimous in excluding the human rights case from probation.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

79.  Suppose a landlord knows his disruptive tenant to be in dispute with a neighbour. Suppose further that the neighbour complains and the landlord then threatens the tenant with eviction for causing nuisance and annoyance. Suppose finally that the tenant blames the neighbour for this and attacks him. Is the landlord to be held liable to the neighbour (or to his dependents if the attack proves fatal)? The answer must be the same whether the neighbour too is one of the landlord’s tenants or merely another resident in the area, and the same whether the landlord is a rich public authority or a poor private owner (so that this is not a case about the liability of public authorities). Does the landlord in these circumstances owe the neighbour a common law duty of care—a duty of care, that is, with regard to the neighbour’s safety from the tenant? Would that be fair, just and reasonable? More colloquially—but to my mind no less accurately—would this be a good idea?

80.  That essentially is the question for your Lordships’ determination on this appeal. There was some suggestion in argument that the test for liability was different (and more exacting) in England than in Scotland but that cannot be. That would be bizarre indeed, not least given that much of England’s negligence law was forged in Scottish appeals. Naturally one assumes that the attack was reasonably foreseeable by the landlord—without that, there could be no question of liability. So much is trite law. But more is required. Whether liability arises depends too on general considerations of fairness and public policy. On the facts assumed above—fundamentally those of the present case but expressed more broadly since your Lordships are concerned here with a question of law which cannot depend upon the detailed circumstances of any particular case—should landlords be made liable for injuries deliberately inflicted by their tenants?

81.  Generally speaking, people are not liable for the crimes of others. A is not ordinarily liable to victim B for injuries (or damage) deliberately inflicted by third party C. In some situations, of course, where, for example, C is employed by A or otherwise acting on A’s behalf, A may be vicariously liable for C’s crime. But it cannot be said that a landlord is vicariously liable for his tenant’s crimes and a consistent line of authority holds that landlords are not responsible for the antisocial behaviour of their tenants: Smith v Scott [1973] Ch 314, O'Leary v London Borough of Islington (1983) 9 HLR 83, Hussain v Lancaster CC [2000] QB 1, and Mowan v Wandsworth LBC [2001] LGR 228.

82.  A may also be liable for C’s crime where he is under an obligation to supervise C and fails to do so: Dorset Yacht Co Ltd v Home Office [1970] AC 1004, where Borstal boys escaped (and caused damage in the vicinity whilst escaping: important because proximity too is a necessary condition of liability in these cases) whilst their warders were asleep, is a good illustration of this. Similarly, if A specifically creates a risk of injury, by, for example, arming C with a weapon, he may be liable for the resulting damage, as in the particular circumstances of Attorney General of the British Virgin Islands v Hartwell [2004] 1 WLR 1273. Similarly, A may be liable if he assumes specific responsibility for B’s safety but carelessly then fails to protect B: see, for example, Costello v Chief Constable of Northumbria [1999] 1 All ER 550. It cannot credibly be suggested, however, that any of these situations arise here. Landlords are under no obligation to supervise their tenants and prevent their committing criminal acts; by threatening a disruptive tenant with eviction a landlord cannot sensibly be said to be creating the risk of personal violence towards others in the same way as the British Virgin Islands police created a risk by arming an erratic probationer; and there can be no question of landlords assuming responsibility for the safety of neighbours (or, indeed, visitors) even if they know their tenants to be threatening them.

83.  As Lord Hope of Craighead has explained, the sole, and very narrow, basis upon which the pursuers now put their claim is that the defenders were under a duty to warn the deceased of precisely when they proposed to threaten their tenant with eviction since it would be this threat which predictably might precipitate violence on his part. To my mind this argument is convincingly disposed of by Lord Hope at paras 27 and 28 of his opinion and there is little I can usefully add on the point. In my opinion there will be very few occasions on which a bare duty by A to warn B of possible impending violence by C will arise. Given, as already stated, that A cannot in any meaningful sense be said to have created the risk of injury that foreseeably arose here, or to have assumed specific responsibility for B’s safety from C, the contention that he was under a positive duty to warn B and that he is liable for B’s death because of a mere omission to do so appears to me plainly unsustainable. I agree too with what my noble and learned friend Lord Rodger of Earlsferry says on this point.

84.  I cannot help thinking that if the Extra Division had had the advantage of the House’s decision in Smith v Chief Constable of Sussex Police [2008] 3 WLR 593 (reported together with Van Colle v Chief Constable of the Hertfordshire Police), the majority (in addition to Lord Reed) would have recognised both the impossibility of the pursuer’s claim succeeding and the consequent desirability of striking it out at this stage (not allowing the pursuers a proof before answer)—see para 140 of my opinion in Smith and para 12 of Lord Hope’s opinion above. Very different considerations, of course, arose in Smith. But realistically, if the police owed no duty of care in the circumstances arising there, it would be highly surprising if the pursuers owed a duty of care in the circumstances of the present case. Not least, it would be odd indeed if the pursuers were liable in law for not warning the deceased whereas, had the police been told of all the facts and nevertheless failed to protect the deceased, they (the body principally charged with the protection of the public) would have been under no such liability.

85.  With regard to the pursuer’s cross-appeal against the exclusion from probation of their human rights claim under article 2 of the Convention, I have nothing to add to what has been said by Lord Hope and Lord Rodger. Again, had the Extra Division had the advantage of the decision of the House in Van Colle, it seems inconceivable that Lady Paton would not have been in agreement with the majority on this issue.

 
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