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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mitchell & Anor (APS) v Glasgow City Council [2008] ScotCS CSIH_19 (29 February 2008) URL: https://www.bailii.org/scot/cases/ScotCS/2008/CSIH_19.html Cite as: 2008 SC 351, 2008 SCLR 375, 2008 GWD 10-192, 2008 SLT 368, [2008] CSIH 19, [2008] ScotCS CSIH_19 |
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lady PatonLord ReedLord Penrose |
[2008] CSIH 19A1700/03OPINION OF LADY PATON in RECLAIMING MOTION in the cause ANNE MITCHELL and KARIN
MITCHELL (Assisted Persons) Pursuers and Reclaimers; against Defenders and Respondents: _______ |
Act: McEachran Q.C., Miss
Alt: A. Smith Q.C., R.W.
Dunlop; Legal Services Department, City
of
[1] James Dow
Mitchell, aged 72, ("the deceased") died on
[2] In 2003, the
deceased's widow and daughter raised the present civil action of damages
against Glasgow City Council in respect of the death. The defenders had been the local authority
landlords of both the deceased and Drummond at all relevant times. The defenders had been aware of Drummond's
threatening and aggressive behaviour towards the deceased, including claims
that he would kill the deceased if he (Drummond) were to be evicted. The attack on the deceased occurred shortly
after a meeting between the defenders and Drummond, at which Drummond's
possible eviction for anti-social behaviour towards the deceased was
discussed. The pursuers maintain that
the defenders owed the deceased and his family a duty of care (a) to instigate
eviction proceedings against Drummond within a reasonable time of complaints
about Drummond's behaviour being made, and in any event by October 1999 at the
latest; and (b) to warn the deceased
about the meeting with Drummond.
[3] After a
debate, the action was dismissed as irrelevant (2005 SLT 1100). The pursuers now reclaim against that dismissal.
[4] The pursuers'
pleadings give the following outline of events:
[5] In the early
1980s, Drummond lived in
[6] In May 1985,
Drummond took up a local authority tenancy at
[7] In the early
hours of the morning of
[8] On
[9] On 1 and
[10] Thereafter
Drummond made threats against the deceased at least once a month. He regularly threatened to kill the
deceased. The police were often
called. There were incidents in 1996,
1997, 1998, 1999, 2000, and 2001. The
deceased and his family consulted city councillors, and a member of the Scottish
Parliament. The councillors and the MSP
wrote to the defenders about the problem.
The deceased and his family also wrote to the defenders about the
abuse. On
[11] In January
2001, an incident involving Drummond's behaviour towards the deceased was
recorded on two video tapes. Drummond
was charged with breach of the peace.
The defenders warned Drummond that he might be evicted if his behaviour
did not improve. At the end of January
2001, the defenders served on Drummond a Notice of Proceedings for Recovery of
Possession, which was valid for six months.
At that stage, the defenders kept the deceased informed of the steps
which they were taking.
[12] During the
next six months, the problems between Drummond and the deceased escalated. The defenders were aware of that
escalation. There was an incident on
[13] In total, the
police were involved in at least forty incidents.
[14] By letter
dated
[15] The meeting
began at
[16] The defenders
did not warn the deceased about the meeting or its purpose. Nor did they make any attempt to warn the
deceased or the police about Drummond's behaviour at the meeting, or any
possible risk of retaliation by Drummond against the deceased.
[17] On leaving the
meeting, Drummond returned to
[18] The pursuers
raised the present action against the defenders, averring that the defenders
owed the deceased a duty of care (a) to instigate legal proceedings for the
recovery of Drummond's property within a reasonable period of time after
complaints had been made, and in any event by October 1999 at the latest; and (b) to warn the deceased about the
meeting with Drummond on 31 July 2001, the purpose of the meeting, the nature
of Drummond's behaviour at the meeting, and any resulting risk to the
deceased. The pursuers rely upon the
common law, and Article 2 of the European Convention on Human Rights (ECHR).
" Right to life
1. Everyone's
right to life shall be protected by law.
No one shall be deprived of his life intentionally save in the execution
of a sentence of a court following his conviction of a crime for which this
penalty is provided by law.
2. Deprivation
of life shall not be regarded as inflicted in contravention of this article
when it results from the use of force which is no more than absolutely
necessary:
(a) in
defence of any person from unlawful violence;
(b) in
order to effect a lawful arrest or to prevent the escape of a person
lawfully detained;
(c) in
action lawfully taken for the purpose of quelling a riot or
insurrection."
[20] The pursuers'
averments in Articles 12, 13, and 14 of Condescendence are as follows:
"COND. XII The defenders knew that James Drummond had threatened to harm
James Dow Mitchell if he was evicted.
The defenders knew or ought to have known by
...
COND. XIII James Dow Mitchell's death was caused by the fault of the
defenders. It was their duty to take
reasonable care for the safety of their tenants, including the said James Dow
Mitchell, and not expose them unnecessarily to a risk of injury. It was their duty to take reasonable care for
the safety of neighbours of their tenants, including James Drummond, and not to
expose them unnecessarily to a risk of injury at the hands of their
tenants. It was their duty to take
reasonable care to act on repeated complaints of a serious nature which were
made over a prolonged period of time. It
was their duty to take reasonable care to instigate legal proceedings for the
recovery of property from violent tenants such as James Drummond within a
reasonable period of time after complaints had been made, and in any event by
October 1999 at the latest. Following
the report to the defenders of the incident of 10th July, 2001 and having
regard to the previous history of threats, it was their duty to keep the
deceased and local Police informed of the steps they proposed to take in
relation to James Drummond. It was their
duty to take reasonable care to advise tenants such as James Dow Mitchell that
there might be a real and immediate risk of injury from tenants such as James
Drummond. It was their duty to consider
the safety of James Dow Mitchell when arranging the meeting with James Drummond
for
...
COND. XIV Separatim the defenders
are a public authority for the purposes of the Human Rights Act 1998. Section 6(1) of the 1998 Act provides that it
shall be unlawful for a public authority to act in a way which is incompatible
with a Convention right. The Convention
in Article 2 provides that everyone's right to life shall be protected by law. James Dow Mitchell's life was not
protected. The defenders knew or ought
to have known that there was a real and immediate risk to James Dow Mitchell's
life on
[21] A debate took
place before Lord Bracadale. By
interlocutor dated
"1. The
Lord Ordinary erred
(a) in
sustaining the defenders' first plea-in-law and dismissing the action; and
(b) failing
to reserve that plea-in-law for determination at a proof before answer.
2. The
Lord Ordinary erred in refusing to allow a proof before answer in respect of
the case brought in terms of art 2 of the European Convention on Human Rights:
(a) having
held in para. 56 that the question of foreseeability would require to be determined
after proof, it was not open to him to hold in para 74 that the pursuers
had failed to set out any basis for saying that prior to the meeting the
defenders knew or ought to have known of the existence of a real and immediate
risk to the life of the deceased;
(b) since
the pursuers claim that the deceased's death was caused by failure of a public
authority, they are entitled to an inquiry which is capable of establishing the
liability of that public authority for the death. They are entitled to an inquiry in which
compensation may be awarded. A fatal
accident inquiry would not meet these requirements (paras 73, 75). Nor would an application for Criminal
Injuries Compensation (para 60). Z - v -
3. As
regards the common law case the Lord Ordinary erred in requiring the pursuers
to satisfy the tripartite test set out in Caparo
Industries plc - v - Dickman [1990] 2 AC 605. The pursuers aver that the defenders'
negligence led to the death of their husband/father. It is recognised that a landlord may be
liable to his tenant for personal injury caused by the landlord's
negligence. It is also recognised that a
landlord may be liable to a tenant for nuisance caused by a neighbouring tenant. In the circumstances, the pursuers only
required to establish reasonable foreseeability and proximity. They did not require to establish that it
would be fair, just and reasonable for such a duty to be placed on the
defenders. (Marc Rich & Co AG - v- Bishop Rock Marine Co Ltd [1996] AC 211,
Perrett - v - Collins [1998] 2 Lloyds Rep 255, Harrison - v - West of Scotland
Kart Club 2004 SC 615, Noble - v - De
Boer 2004 SC 548).
4. Esto the pursuers require to satisfy the
tripartite test, the Lord Ordinary erred in holding that it would not be fair,
just and reasonable to impose a duty of care on the defenders. The Lord Ordinary correctly identified that
the requirement of proximity was satisfied (para 54). He correctly identified that the question of foreseeability
could not be resolved without evidence (paras 55-56). In concluding that it would not be fair, just
and reasonable to impose a duty of care on the defenders, the Lord Ordinary
erred:
(a) by
reaching a decision without hearing evidence (para 58): Harrison
- v West of Scotland Kart Club 2004 SC 615, Swinney & Anr - v - Chief Constable of Northumbria Police Force [1997] QB 464, W - v - Essex County Council 2001 2 AC 592. The Lord Ordinary's decision
was influenced by the oral submissions of the defenders, despite there being no
averments on record and no notice in the Note of Argument in support thereof. These oral submissions were noted in para 14,
and were opposed on behalf of the pursuers in paras 20, 23 and 28;
(b) by
failing to consider separately the two duties of care pled by the pursuers, and
in particular to consider whether the duty to warn the deceased of the meeting
on 31 July would have had the supposed resource implications (para 58);
(c) by
relying on English authorities relating to the discretionary exercise of
statutory powers by local authorities rather than on common law cases;
(d) by
failing to follow Fleming - v - Gemmill
1907 SC 340."
Ground of Appeal
2(a): the right to life (Article 2 of
the ECHR)
[23] The defenders
were a core public authority as defined in the Human Rights Act 1998. They provided local authority housing. In terms of section 6 of that Act, it was
unlawful for the defenders to act in a way which was incompatible with a
Convention right, including Article 2, the right to life. In this context, the defenders' knowledge of
the history between their two tenants placed them under an obligation which a
private landlord would not necessarily have.
[24] There was no
directly analogous case in
[25] Furthermore,
the Court of Appeal in Van Colle
(paragraph 75(3)), and a single judge in Savage
v South Essex Partnership NHS Foundation Trust [2006] EWHC 3562 (QB), had
held that in these sorts of cases (as distinct from medical negligence cases)
the question to be explored was whether certain "preventive operational
measures" should have been taken, such as giving the deceased a warning. There should be investigation into whether
the public authority did all that could have been done in the
circumstances. There was no need to
satisfy the higher test of "gross negligence" applicable in the medical
negligence cases referred to above.
[27] In all the
circumstances, the pursuers had averred a relevant case in terms of Article 2,
suitable for inquiry at a proof before answer.
Such a proof should be allowed.
Ground 2(b): the right to an inquiry (Article 2 of the
ECHR)
[28] The plea of
guilty to culpable homicide meant that the pursuers had been deprived of an
inquiry into the facts. However the
state had an obligation to provide an effective investigation where there was
an alleged breach of rights as fundamental as Article 2 (the right to life) or Article
3 (the prohibition against torture and degrading treatment). Thus there should be available to a victim a
mechanism for establishing any liability of state officials or bodies and
resulting in an award of compensation if appropriate. Reference was made to Z v United Kingdom (2002) 34 EHRR 97, at paragraphs 105 to
111; R
(Gentle) v Prime Minister [2007] QB 689, at paragraphs 77 to 78; Fayed v
Lord Advocate 2004 S.C. 568, at paragraphs [16] to [18]; and R
(Amin) v Secretary of State for the Home Department [2004] 1 AC 653, at
paragraph 22. If no fatal accident
inquiry had been ordered by the Lord Advocate, and if a civil action for
damages were raised on the basis of a death said to be attributable to a public
authority's breach of Article 2 of the ECHR, then the court should ensure that
the case reached a proof before answer, thus providing an inquiry into the
facts, irrespective of the relevancy of the averments.
Grounds 3 and 4: common law negligence
[29] Scottish
courts were in danger of inappropriately applying the tripartite test in Caparo Industries plc v Dickman [1990] 2 AC 605. The Caparo test was being used (wrongly) in personal injuries cases
where it was already established and accepted that a duty of care arose (for
example, in an employer-employee situation).
Properly applied, the Caparo test
should be confined to novel cases and uncharted areas where the question was
whether or not a duty of care existed, and where the law had to develop
incrementally: pages 617G to 618F of Caparo.
[30] The present
case concerned the question whether a defender should be held liable for the
actings of a third party. But that was
an area of personal injuries law well-covered by authority. Reference was made to Donoghue v Stevenson 1932 SC (HL) 31; Dorset
Yacht Co Ltd v Home Office [1970] AC 1004; Carmarthenshire
County Council v Lewis [1955] AC 549;
Maloco v Littlewoods Organisation
Ltd [1987] AC 241; Swinney v Chief Constable of Northumbria [1997] QB 464, at pages 478H to 479C, 483G to 484E, and 487B-D; and W v
Essex County Council [2001] 2 AC 592, at page 598. Accordingly there was no need to apply the Caparo tripartite test. Rather, reliance should be placed on the
guidance given in the authorities referred to.
In particular, bearing in mind the categorisation of cases given by Lord
Goff in Maloco, cit. sup., the
pursuers' case fell into the category of assumption of responsibility by the
defenders and resultant reliance on the defenders by the deceased and his
family for protection from harm. The
local authority had assumed responsibility for resolving the problem. For example, they had served written warnings
and notices on Drummond; they had
advised the deceased to log incidents;
they had obtained statements from witnesses. The law recognised that there might be a
remedy available to the pursuers in the circumstances set out in the pleadings,
and evidence should be led before the court made a final decision.
(a) In novel
cases such as the present, questions of what would be fair, just and
reasonable, and the resultant duties
of care, should be fully explored at a proof before answer, rather than
dismissing the case on the basis of the pleadings alone: cf. Barrett
v Enfield London Borough Council [2001] 2 AC 550, at pages 557D-G, 560D,
568, 574D-G, 575D-E; Harrison v West of Scotland Kart Club 2004
S.C. 615, paragraphs [13], [15] and [19].
(b) When
assessing the resource implications, the Lord Ordinary should have
considered the cost implications of a
simple step such as a warning letter or a telephone call. On the previous occasion in January 2001, the
deceased had been warned that Drummond had been threatened with eviction. There were implications and expectations
arising from such previous warnings which required exploration at a proof.
(c) The defenders
relied to a considerable extent on X
(Minors) v Bedfordshire
County Council [1995] 2 AC 633. But at page 735 F, it was
recognised that there could be a co-existence of a statutory duty and a common
law duty of care. The present case fell
into category (b), namely taking care in the manner in which the statutory
discretion was exercised. The defenders
had failed to take care in the manner in which they dealt with the complaints
from the deceased and his family. Barrett v Enfield London Borough Council [2001] 2 AC 550 gave further guidance, particularly at pages 585C-G and 586B-C. The exercise of discretion might provide a
defence only where what was done was a purely policy matter, such as the
closing of a school. In cases such as Smith
v Scott [1973] 1 Ch. 314 and O'Leary
v
(d) In paragraphs
[50] to [52] of his judgement, the Lord Ordinary erred in failing
to follow Fleming v Gemmill 1908 S.C. 340.
There could be circumstances in which the landlord was liable for the
misuse of the property by his tenants, causing prejudice to another. The law of delict had developed since the
case of Smith v Scott [1973] Ch. 314,
and in any event the Scots law of delict could develop differently from the
English law of delict. Both Fleming v Gemmill, cit. sup. and an
English authority Chartered Trust plc v
Davies [1997] 2 EGLR 83 supported the proposition that a landlord owed
another tenant or third party a duty of care for the actings of the
tenant. This illustrated the incremental
development of the common law against a background that it was recognised that
the landlord might be liable for a nuisance caused by the tenant. A landlord was liable to his tenant for, say,
dampness in the premises let; the cases
cited simply took the common law a stage further.
[33] In answer to a
question from the court concerning the latest appropriate date for the
instigation of proceedings to evict Drummond, averred at page 21C of the
Reclaiming Print to be October 1999, counsel explained that, given that a
neighbour Helen Anderson had given a statement on 31 August 1999, as averred at
pages 9A-C of the record, the defenders should, in the exercise of reasonable
care at common law, have instigated proceedings by October 1999 at the latest.
[34] Counsel for
the defenders contended that the reclaiming motion should be refused, and the
interlocutor of the Lord Ordinary adhered to.
Ground of Appeal
2(a): the right to life (Article 2 of
the ECHR)
[35] It was
accepted that the defenders were a core public authority bound by section 6 of
the Human Rights Act 1998: cf. Lord
Bingham at paragraphs 3 and 129 of YL v
[36] Moreover the
test to be applied in the context of Article 2 was one of "a real and immediate
risk to the life of an identified individual from the criminal acts of a third
party": cf. Osman, paragraph 116. That
test was far higher than the test of reasonable foreseeability required by
common law. Death had to be foreseen,
whereas at common law, foreseeability of some sort of injury would suffice: Hughes
v Lord Advocate 1961 S.C. 310, 1963 SC (HL) 31. There were no averments in the present case
satisfying the test of a "real and immediate risk to the life" of the
deceased. The pursuers' case must
therefore fail for that additional reason.
The Lord Ordinary was correct in so holding in paragraph 74 of his
judgement.
[37] As for
causation, counsel contended that the pursuers must be able to demonstrate that
"but for" the breach of Article 2, death would not have occurred: Van
Colle, paragraph 98; Lester and
Pannick, Human Rights Law and Practice, paragraph 2.8.4(b); Kingsley
v
[38] In conclusion,
counsel submitted that (i) there were no averments amounting to "gross
negligence", which was the proper test:
cf. Powell and R (Takoushis); (ii) in any event, there was nothing on
record amounting to a real and immediate risk to the life of the deceased; and
(iii) the pursuers' averments were equally insufficient to show that measures
which the defenders might have taken within the scope of their powers might
have been expected to avoid any such risk.
Ground of Appeal 2(a) should not therefore succeed.
Ground of Appeal
2(b): the right to an inquiry (Article 2
of the ECHR)
[39] The obligation
to hold an inquiry (if such existed) lay upon the state, not the local
authority. If anything was lacking in
the inquiry process, the pursuers' remedy was to seek a fatal accident inquiry
(FAI), or judicially review a decision not to hold an FAI: cf. Fayed
v Lord Advocate 2004 S.C. 568, R
(Amin) v Secretary of State for the Home Department [2004] 1 AC 653, R (Takoushis) v Inner North London Coroner [2006] 1 WLR 461. The purpose of a civil
action such as the present was to assess whether the pursuers were entitled to
compensation, not to explore an alleged systemic failure on the part of the
local authority.
[40] Z v
Grounds 3 and 4: common law negligence
[41] At common law,
the duty imposed was one of reasonable care, which could only be properly
assessed by considering what was fair, just and reasonable in the
circumstances. Accordingly the Caparo tripartite test should be
applied. The law should proceed
incrementally. It was accepted that
there were cases where a person might be legally responsible for a wrong done
or harm inflicted by a third party: for
example, Dorset Yacht Co Ltd v Home
Office [1970] AC 1004. But in such
cases, liability was imposed because the defender had created a situation in
which it was reasonably foreseeable that another person would inflict harm on
someone such as the pursuer. This was
not such a case.
[42] Matters might
be different had there been an assumption of responsibility by the local
authority. However that was not the
case. Thus appropriate guidance for the
present case could be found in English authorities where a landlord was held to
have no liability in similar types of circumstances: Smith v
Scott [1973] 1
[43] The primary
duty contended for by the pursuers was a duty to evict. As the defenders were acting on the basis of
statutory powers accorded to them, it was necessary to address authorities such
as Stovin v Wise [1996] AC 923, and
Gorringe v Calderdale Metropolitan
Borough Council [2004] 1 WLR 1057, and to test whether it was fair, just
and reasonable to impose a duty of care in the whole circumstances, when the
local authority were acting in a statutory context. Drummond had a secure tenancy in terms of
sections 46 to 48 of the Housing (
"Notwithstanding any provision
contained in the tenancy agreement, a secure tenancy may not be brought to an
end except ... [inter alia] ... (e) by an
order for recovery of possession under section 48(2)"
It was not a question of a jus quaesitum tertio, but rather that the landlord's ability to
recover possession was governed by section 48 and the requirements
therein. Those requirements included not
only a breach of a condition in the lease, but also a decision by the court
that the local authority's application for eviction was reasonable, and that
there was other accommodation suitable for the tenant (although the latter
condition did not apply if the eviction proceeded on the basis of the ground
relating to anti-social behaviour). The
local authority could act only within the statutory context: hence their service of a notice (subsisting
for six months) in terms of section 47.
[44] Not only was
the local authority acting in a statutory context, but the pursuers in this
case were complaining of an omission rather than an act. They complained of a failure to evict and a
failure to warn. The case of X (Minors) v Bedfordshire County Council [1995] 2 AC 633 was therefore relevant, particularly the dicta of Lord Browne-Wilkinson at page 730F et seq. The decision whether
or not to evict and to seek recovery of possession was plainly one within the
discretion of the local authority.
Dependent on that discretionary decision was the manner in which any
eviction should be carried out: for
example, the date chosen, the method of communication (letter or meeting); and
other similar matters. All such actions
fell within the discretion of the local authority in terms of section 47. That discretion meant that there was no duty
of care owed to the pursuers.
[46] If the local
authority's conduct were to be judged on the basis of category (a), there was
nothing in the pursuers' averments to suggest that the defenders acted outwith
their discretion. There was no averment
that the defenders had been unreasonable in the
Wednesbury sense. In Stovin
v Wise [1996] AC 923, at pages 943, 944 to 945, 946 to 947, and 952 to
953, Lord Hoffmann emphasised that where a local authority has a statutory
discretion, unless the authority stepped outside that discretion and acted
unreasonably, no liability would attach.
In Stovin there had been no
actual power to remove the bank of land;
similarly in the present case there had been no actual power to evict
Drummond. The power of eviction lay with
the sheriff, to whom the defenders made an application. Thus no duty of care arose. Gorringe
v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057, paragraphs
21 to 26, 71, 99 and 100, contained much which was relevant to the present
case.
[47] Counsel
acknowledged that there might be circumstances where a defender could be held
liable for the wrongful act of a third party:
but those circumstances were restricted to certain categories: (i) Situations were the defender had an
element of control over the wrongdoer, or something used by the wrongdoer to
commit a wrong: Lister v Hesley Hall [2001] 1 AC 215; Dorset
Yacht Co Ltd v Home Office [1970] AC 1004; and Maloco
v Littlewoods Organisation Ltd [1987] AC 241. (ii) Cases involving a special relationship
between pursuer and defender, for example, employer-employee, or
teacher-child: cf. Collins v First Quench Retailing Ltd 2003 S.L.T. 1220. (iii) Situations when there had been an
assumption of responsibility by the defender, and a consequent reliance
thereon: Swinney v Chief Constable of
"It was their duty to take reasonable
care for the safety of their tenants ... and not expose them unnecessarily to a
risk of injury. It was their duty to
take reasonable care for the safety of neighbours of their tenants ... and not to
expose them unnecessarily to a risk of injury at the hands of their tenants."
Only if the major premise at page 21A-B was correct could the
minor premises emerge, but the circumstances of the present case did not fall
within any of the recognised categories (i) to (iii).
[48] Two recent
decisions in the English Court of Appeal dealt with a landlord's liability for
his tenant's actings. In Hussain v
[49] If any aspect
of the defenders' conduct fell outwith the exercise of their discretionary
powers, the case against them failed because it would not be fair, just and
reasonable to impose a duty on them in the circumstances. Several factors were of assistance when
assessing what was fair, just and reasonable in the present case, namely: (i) In relation to an alleged duty to warn,
the deceased well knew that he should avoid Drummond: cf. Tomlinson
v Congleton Borough Council [2004] 1 AC 46, Lord Hobhouse at paragraph
74. (ii) If the court were to hold that
the landlord owed the deceased and his family a duty of care, that ruling would
affect every landlord, whether public authority or private. (iii) The duty would be owed not only to
tenants, but to anyone who was the foreseeable target of the tenant in
question, including owner-occupiers or prospective tenants. (iv) The duty would not only encompass the
need to warn a tenant about the possibility of being attacked, but also
situations where property might be damaged, or loud music might be played. (v) The present case involved a pure
omission. In general, no duty of care
arose in such circumstances. (vi) If it
were held that a duty of care arose in a situation such as the present, the
local authority would have to make a decision in favour of one of two
protagonists. Yet the authority might
have heard only one side of the story, and have an incomplete picture. (vii) The local authority would be faced with
conflicting duties: a duty of care owed
to the deceased and his family, and a duty of confidentiality owed to Drummond
in terms of Article 8 of the ECHR. The
defenders' averments relating to data protection were merely illustrative of
one of the many restraints relating to the provision of information from the
council. Sharp conflicts in duty would
arise involving inter alia tenants'
activities, Article 8 and the Data Protection Act. Such conflict was a factor to be taken into
account when assessing what was fair, just and reasonable. (viii) A decision in favour of the pursuers
would effectively determine the existence of a jus quaesitum tertio, turning on the terms of the lease and the
Housing (
[51] In relation to
the pursuers' arguments founded upon the Scottish authority of Fleming v Gemmill 1908 S.C. 340, the
defenders' contention was that the court in that case accepted that a landlord
was in general not liable for the acts of his tenant. At page 349 the court's reasoning for the
ultimate decision could be seen to be based on the concept of an opus manufactum. In other words, in the particular
circumstances of that case, the landlord had set up the property in such a way
that something was going to happen. Fleming v Gemmill was accordingly very
much against the pursuers.
[52] In conclusion,
counsel submitted that the reclaiming motion should be refused. There was no colourable case under the Human
Rights Act. The common law case was
bound to fail. The Lord Ordinary had
been correct when he stated in his final paragraph [76] that, "[a]pplying the
test in Jamieson v Jamieson ... the
pursuers must fail". The action should
be dismissed, saving further unproductive time and expense.
[53] Following upon
the hearing of the reclaiming motion, counsel for the defenders provided the
court with two recent decisions of the Court of Appeal, namely Savage v
Common law case:
Grounds of Appeal 3 and 4
[54] There is
authority in both Scots law and English law establishing that, as a general
rule, a landlord owes no duty of care to neighbours of his tenant in respect of
that tenant's actings: Smith v Scott [1973] 1 Ch. 314;
O'Leary v London Borough of Islington (1983) 9 HLR 83;
Hussain v Lancaster City Council [2000] QB 1; and Fleming v Gemmill 1908 S.C. 340. In the latter case, liability arose only
as a result of an opus manufactum created
by the landlord and leading to a predictable result when the tenants occupied
and used the property.
[55] Further, it
is well-settled that only in exceptional circumstances will delictual liability
attach to a defender in respect of the criminal acts of a third party. For example, it has been held that liability
may arise where there was an assumption of responsibility by the defender, and
consequent reliance on the defender by the pursuer because of that
assumption. Such situations have
occurred where an authority failed to keep its undertaking to conceal the
identity of a police informant; or where
the police took control of a dangerous location, but then departed without
putting adequate replacement protective measures in place: cf. Swinney
v Chief Constable of Northumbria Police [1997] QB 464; Gibson v Orr 1999 SC 420
(citing inter alia Dorset Yacht Co v Home
Office [1970] AC 1004).
[56] In the
present case, the pursuers' argument developed and became more refined in the
course of the reclaiming motion, possibly resulting in a final presentation
which was not clearly articulated in the pleadings, nor well-focused before the
Lord Ordinary. The position ultimately
adopted by the pursuers' counsel was that the defenders had indeed assumed
responsibility for the resolution of the grave problem at
[57] In view of
the position ultimately adopted by the pursuers, I consider that it cannot at
this stage be said that the pursuers would be unable to establish the existence
of a duty of care owed to the deceased and his family by the defenders. It cannot therefore be said that the pursuers
would be bound to fail in terms of the test outlined in Jamieson v Jamieson 1952 S.C. (H.L.) 44. It is at least arguable that the defenders
adopted a particular approach (rather than other alternatives) in a commendable
endeavour to resolve a difficult and potentially dangerous problem. But in so doing, they may be shown to have
assumed responsibility for a particular way of resolving the problem which
imposed upon them a duty of reasonable care to protect the deceased and his
family from a risk of foreseeable harm.
In other words, the defenders may be demonstrated to have brought about
a set of circumstances resulting in assumption of responsibility, proximity and
a foreseeable risk of injury to the deceased and his family, all being issues
which, in my view, should only be finally determined once the facts have been
established: cf. Barrett v Enfield London Borough Council [2001] 2 AC 550. Foreseeability of death is not a prerequisite
at common law, but merely foreseeability of some sort of injury: cf Hughes
v Lord Advocate 1961 S.C. 310, 1963 SC (HL) 31; but, standing the novelty of the
circumstances in this case, the tripartite test in Caparo Industries plc v Dickman [1990] 2 AC 605 should in my view be applied once the
facts are established: cf. the approach
of Lord Hamilton in Gibson v Orr 1999 SC 420.
[58] The landlord
in the present case was a public authority, carrying out functions in terms of
the Housing (
[60] In my view
there is sufficient in the pursuers' averments, as presented in the reclaiming
motion, to entitle the pursuers to a proof before answer in respect of the
defenders' failure to warn the deceased, his family, and the police, of the
meeting on
[61] It follows
that it is my view that the Lord Ordinary proceeded too far, too fast, in
dismissing the action without hearing evidence.
A proof before answer should be allowed.
However for the reasons given in paragraph [58] above, I would exclude
from probation averments relating to any duty said to be owed to the deceased
and his family by the defenders to instigate proceedings for eviction within a
reasonable time of complaints being made, and by October 1999 at the latest,
namely, at page 21C, the averments:
"It was their duty to take reasonable
care to act on repeated complaints of a serious nature which were made over a
prolonged period of time. It was their
duty to take reasonable care to instigate legal proceedings for the recovery of
property from violent tenants such as James Drummond within a reasonable period
of time after complaints had been made, and in any event by October 1999 at the
latest."
Human rights case: Ground of Appeal 2
[62] There was no
dispute that the defenders are a core public authority who must not, in terms
of section 6 of the Human Rights Act 1998, act in a way which is incompatible
with a convention right.
[63] The
foreseeability desiderated at common law is a lesser requirement than that
required by Article 2 of the ECHR, as Article 2 requires that the defenders
knew or ought to have known of the existence of a real and immediate risk to
the life of the deceased (cf. Osman v
United Kingdom 1998 29 EHRR 245) whereas the common law requires only
that the defenders knew or ought to have known of the risk that some physical
injury would occur (Hughes v Lord
Advocate 1961 S.C. 310, 1963 SC (HL) 31). Accordingly, as a logical proposition, the
Lord Ordinary was entitled to hold in paragraph 56 that the averments could
support a proof before answer of foreseeability at common law, while not
justifying a proof before answer in respect of the foreseeability of risk of
death as required by Article 2 (paragraph 74).
[64] Nevertheless
the test set out in Article 2 may be modified, and its high standard reduced,
if the defenders' own actings caused or contributed to the circumstances giving
rise to the risk. As the Court of Appeal
confirmed in Van Colle v Chief Constable
of Hertfordshire Police [2007] 1 WLR 1821, at paragraph 75(5):
"Where it is the conduct of the state
authorities which has itself exposed an individual to the risk to his life,
including for example where the individual is in a special category of
vulnerable persons, or of persons required by the state to perform certain
duties on its behalf which may expose them to risk, and who is therefore
entitled to expect a reasonable level of protection as a result, the Osman threshold of a real and immediate
risk in such circumstances is too high.
If there is a risk on the facts then it is a real risk, and "immediate"
can mean just that the risk is present and continuing at the material time,
depending on the circumstances. If a
risk to the life of such an individual is established, the court should
therefore apply principles of common sense and common humanity in determining
whether, in the particular factual circumstances of each case, the threshold of
risk has been crossed for the positive obligation in Article 2 to protect life
to be engaged."
cf. the observations of Swift J. in paragraphs 33-37 of Savage v South Essex Partnership NHS
Foundation Trust [2006] EWHC 3562 (QB) (observations which were not
disapproved by the Court of Appeal in [2007] EWCA Civ 1375).
[65] As a proof
before answer is to be allowed in relation to the common law case (see
paragraph [61] above), the court will have to make findings in fact, including
findings relating to the two neighbours, Drummond's threatening behaviour, the
events leading up to the meeting on 31 July 2001, and what occurred at the
meeting. Until the facts are
established, it is not possible in my view to rule out the possibility that the
court might conclude that the defenders themselves, by their own actions,
brought about a situation which "exposed [the deceased] to the risk to his
life" (cf. Van Colle, cit. sup., paragraph
75(5)). In such a situation, a lower
threshold of risk to the individual as outlined in paragraph 75(5) of Van Colle might be applicable. The actings of the local authority might then
be considered in accordance with the guidance given in paragraph 75(4) of Van Colle, rather than by the
application of the "gross negligence" test referred to in Powell v United Kingdom (2000) 30 EHRR CD 362, and R (Takoushis) v Inner North London Coroner [2006] 1 WLR 461 (both cases concerning medical negligence). Paragraph 75(4) of Van Colle is in the following terms:
"To determine, where it is
[established that the state authorities knew or ought to have known at the time
of the existence of a ... risk to the life of that individual and yet failed to
take such measures within the scope of their powers which, judged reasonably,
might have been expected to avoid that risk], whether there was a breach of
that obligation it is not necessary for the claimant to establish that the
failure to perceive the risk to life in the circumstances known at the time or
the failure to take preventive measures to avoid that risk amounted to gross
negligence or to a wilful disregard of the duty to protect life. It is sufficient to show that the authorities
did not do all that could reasonably be expected of them to avoid a ... risk to
life, of which they had or ought to have had knowledge. The answer to this question will always
depend upon the individual facts of the case."
Not only does the Appeal Court in Van Colle emphasise the fact-sensitive nature of the issues, but
again, applying Jamieson v Jamieson 1952
S.C. (H.L.) 44, it is in my view not possible at this stage, before the facts
are determined, to say with certainty that the pursuers must definitely fail in
their claim based upon Article 2 of the ECHR.
Accordingly I am satisfied that a proof before answer should be allowed
in relation to the pursuers' case based on Article 2 as set out in their
pleadings and in particular in Article 14 of Condescendence.
[67] For the
reasons given above, I would recall the Lord Ordinary's interlocutor dated
"It was their duty to take reasonable
care to act on repeated complaints of a serious nature which were made over a
prolonged period of time. It was their
duty to take reasonable care to instigate legal proceedings for the recovery of
property from violent tenants such as James Drummond within a reasonable period
of time after complaints had been made, and in any event by October 1999 at the
latest."
Quoad ultra a proof before answer should be
allowed, all pleas standing.
|
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
|
Lady PatonLord ReedLord Penrose |
[2008] CSIH 19A1700/03 OPINION OF LORD REED in the cause ANNE MITCHELL AND ANOTHER Pursuers; against Defenders: _______ |
Act: McEachran Q.C., Miss
Alt: A. Smith Q.C., R.W.
Dunlop; Legal Services Department, City
of
1. INTRODUCTION
The facts of the
present case
[68] Since the defenders seek the dismissal of
the action on the ground that the pursuers' averments are irrelevant and
lacking in specification, the court assumes (for the purposes of the argument)
that the allegations of fact made in the pursuers' averments are true, and
disregards the defenders' averments. The
question is whether the pursuers' averments are capable of supporting a cause
of action.
[69] The pursuers
are the widow and daughter of the late James Mitchell, who died on
[70] It is averred
that the abuse was reported by Mr Mitchell to his local councillors,
Gibson and McCarron, and to his MSP, who in turn wrote to the defenders about
the abuse. Victim Support wrote to the
defenders in August 1999 advising that other residents in
[71] The defenders
responded to the incident in December 1994 by replacing the broken windows and
the front door. By March 1995 they had
interviewed Drummond about his behaviour and had given him a written warning in
relation to his future conduct. They
wrote to Councillor Gibson, informing him that a warning had been given. During 1995 they advised Mr Mitchell to
log complaints against Drummond, and told him that they would instigate
proceedings against Drummond for the recovery of possession if matters
persisted. In August 1998 they wrote to
Mr Mitchell, informing him that they had interviewed Drummond in
connection with complaints. In September
1999 they wrote to Councillor Gibson, informing him that a warning had been
given. In May 2000 they wrote to
Mr Mitchell, informing him that they had interviewed Drummond in
connection with complaints. At a meeting
in June 2000 they told Mr Mitchell that they would ask Drummond to come to
their offices. In January 2001 they
wrote to (another) Councillor Gibson, informing her of steps which had been
taken. At the end of January 2001
(following the incident which led to Drummond's being charged with breach of
the peace) the defenders served on Drummond a notice of proceedings for
recovery of possession in accordance with the 1987 Act. When the notice was served, the defenders
advised Mr Mitchell of the situation.
Following the incident on
The statutory context
[72] The 1987 Act
confers a wide variety of powers and duties upon local authorities in
connection with the provision of housing.
In particular, under Part I of the Act every local authority are
under a duty to consider the housing conditions in their area and the needs of
the area for further housing accommodation (section 1(1)), and have a
power to provide such accommodation (section 2(1)). The general management, regulation and
control of houses held for housing purposes by a local authority is vested in
the authority (section 17(1)), and they have a power to make byelaws in
that regard (section 18). The local
authority are under a variety of duties in relation to their housing list and
the selection of tenants. Under
Part II of the Act, the authority have a variety of duties towards persons
who are homeless or threatened with homelessness.
[73] Part III
of the Act is concerned with the rights of public sector tenants. In particular, section 46(1) provides
that, notwithstanding any provision contained in the tenancy agreement, a
secure tenancy may not be brought to an end except by the death of the tenant,
by agreement between the tenant and the landlord, or by the operation of specified
statutory provisions, including
"(e) by an order for recovery of possession
under section 48(2)".
Section 47 is concerned with proceedings for possession,
and provides:
"(1) The landlord under a secure tenancy may
raise proceedings for recovery of possession of the house by way of summary
cause in the sheriff court of the district in which it is situated.
(2) Proceedings for recovery of possession
of a house subject to a secure tenancy may not be raised unless -
(a) the
landlord has served on the tenant a notice complying with subsection (3);
(b) the
proceedings are raised on or after the date specified in the said notice; and
(c) the
notice is in force at the time when the proceedings are raised.
(3) A notice under this section shall be in
a form prescribed by the Secretary of State by statutory instrument, and shall
specify -
(a) the
ground, being a ground set out in Part I of Schedule 3, on which
proceedings for recovery of possession are to be raised; and
(b) a
date, not earlier than 4 weeks from the date of service of the notice or the
date on which the tenancy could have been brought to an end by a notice to quit
had it not been a secure tenancy, whichever is later, on or after which the
landlord may raise proceedings for recovery of possession.
(4) A notice under this section shall cease
to be in force 6 months after the date specified in it in accordance with
subsection (3)(b), or when it is withdrawn by the landlord, whichever is
earlier."
The notice which was served on Drummond in late January 2001
was a notice under section 47. It
follows from section 47(3)(b) and (4) that the notice would have been due
to expire during August 2001.
[74] The grounds
set out in Part I of Schedule 3 include:
"7. The tenant of the house (or any one of joint
tenants) or any person residing or lodging with him or any sub-tenant of his
has been guilty of conduct in or in the vicinity of the house which is a
nuisance or annoyance and it is not reasonable in all the circumstances that
the landlord should be required to make other accommodation available to him.
8. The tenant of the house (or any one of
joint tenants) or any person residing or lodging with him or any sub-tenant of
his 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 the tenant to move to other accommodation."
In the present case, it appears to have been paragraph 8
which was invoked.
[75] Section 48
is concerned with the powers of the sheriff in possession proceedings, and (so
far as material) provides:
"(1) The court may, as it thinks fit, adjourn
proceedings under section 47 on a ground set out in any of
paragraphs 1 to 7 and 16 of Part I of Schedule 3 for a period or
periods, with or without imposing conditions as to payment of outstanding rent
or other conditions.
(2) Subject to subsection (1), in
proceedings under section 47 the court shall make an order for recovery of
possession if it appears to the court that the landlord has a ground for
recovery of possession, being -
(a) a
ground set out in any of paragraphs 1 to 7 of that Part and specified in the
notice required by section 47 and that it is reasonable to make the
order; or
(b) a
ground set out in any of paragraphs 8 to 15 of that Part and so specified
and that other suitable accommodation will be available for the tenant when the
order takes effect;
...
(4) An order under subsection (2) shall
appoint a date for recovery of possession and shall have the effect of -
(a) terminating
the tenancy; and
(b) giving
the landlord the right to recover possession of the house,
at
that date."
[76] Section 53
requires that every secure tenancy be constituted by a written lease. The defenders had entered into such a lease
with Drummond, on terms which included a provision reflecting paragraph 8
of Schedule 3 to the Act.
Section 61 confers on the tenant of a house let under a secure
tenancy the right to purchase the house.
[77] Subsequent
provisions of the Act impose responsibilities upon local authorities in respect
of sub-standard housing (Part IV), the repair of houses (Part V),
overcrowding (Part VII), houses in multiple occupation (Part VIII),
and related financial matters.
[78] Considering
the Act as a whole, it can be said, as Lord Hoffmann said of the analogous
legislation for
"the
Act is a scheme of social welfare, intended to confer benefits at the public
expense on grounds of public policy.
Public money is spent on housing the homeless not merely for the private
benefit of people who find themselves homeless but on grounds of general public
interest: because, for example, proper
housing means that people will be less likely to suffer illness, turn to crime
or require the attention of other social services. The expenditure interacts with expenditure on
other public services such as education, the National Health Service and even
the police. It is not simply a private
matter between the claimant and the housing authority."
The allegations of
negligence
[79] The pursuers aver that
Mr Mitchell's death was caused by the defenders' breach of a number of
duties:
1. "It
was their duty to take reasonable care to instigate legal proceedings for the
recovery of property from violent tenants such as James Drummond within a
reasonable period of time after complaints had been made, and in any event by
October 1999 at the latest."
2. "Following
the report to the defenders of the incident of 10th July 2001
and having regard to the previous history of threats, it was their duty to keep
the deceased and local police informed of the steps they proposed to take in
relation to James Drummond."
3. "It
was their duty to take reasonable care to advise tenants such as James Dow
Mitchell that there might be a real and immediate risk of injury from tenants
such as James Drummond."
4. "It
was their duty to advise James Dow Mitchell when arranging the meeting with James
Drummond for
5. "It
was their duty to advise James Dow Mitchell that a meeting had been arranged
for 31st July 2001 at which further steps were likely to be
taken regarding the recovery of possession of James Drummond's property."
6. "It
was their duty to alert the police."
7. "It
was their duty to advise James Dow Mitchell of what had happened at the meeting
on
In their submissions, counsel for the pursuers sought to base
the existence of these duties on the proposition that it was reasonably
foreseeable that Mr Mitchell would be assaulted by Drummond. I consider below whether the reasonable
foreseeability of such a risk would in itself give rise to such duties. As the argument developed, counsel also
contended that there had been an assumption of responsibility by the defenders,
establishing a special relationship between themselves and
Mr Mitchell. As explained below,
this contention appears to me to confuse the defenders' performance of their
functions or responsibilities under the 1987 Act with the assumption of a
responsibility towards Mr Mitchell for his safety at the hands of
Drummond. Besides the defenders'
performance of their statutory functions, the only matters said to establish a
special relationship were those also relied on as demonstrating that an assault
was reasonably foreseeable.
The statutory case
[80] In addition to
the common law case, the pursuers also maintain that the defenders acted in a
way which was incompatible with Mr Mitchell's Convention right under
Article 2 of the European Convention on Human Rights, contrary to section 6(1)
of the Human Rights Act 1998. Their
averments in that regard are succinct:
"The
defenders knew or ought to have known that there was a real and immediate risk
to James Dow Mitchell's life on
Furthermore, counsel for the pursuers submitted that, since
the pursuers claim that Mr Mitchell's death was caused by failures on the
part of a public authority, it follows that they are in any event entitled
under Article 2 to an inquiry at which compensation may be awarded, and
are therefore entitled to have the present case proceed to proof.
[81] I note that no
point has been taken by the defenders under section 7(5) of the 1998 Act.
2. THE COMMON LAW CASE
Introduction
[82] In 1987 Lord
Goff of Chieveley remarked that
"the
broad general principle of liability for foreseeable damage is so widely
applicable that the function of the duty of care is not so much to identify
cases where liability is imposed as to identify those where it is not (see Anns v Merton London BC [1978] AC 728 at p.752 by Lord Wilberforce)"
(Maloco v Littlewoods Organisation Ltd 1987 SC (HL) 37, 84: the case is better known as Smith v Littlewoods, and I shall refer to it by that name). Lord Goff observed (ibid):
"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."
The solution in such circumstances, Lord Goff suggested,
was to "search for special cases in which, upon narrower but still identifiable
principles, liability can properly be imposed."
In particular,
"in
cases where the plaintiff has suffered damage through the deliberate wrongdoing
of a third party ....it is not surprising that once again we should find the
courts seeking to identify specific situations in which liability can properly
be imposed".
[83] Three years
later, in Caparo Industries plc v Dickman [1990] 2 AC 605, the House of
Lords adopted a different approach from that of Lord Wilberforce in Anns.
In a well-known passage (at pages 617-618), Lord Bridge of
Harwich stated what is sometimes described as a tripartite test:
"What
emerges is that, in addition to the foreseeability of damage, necessary
ingredients in any situation giving rise to a duty of care are that there
should exist between the party owing the duty and the party to whom it is owed
a relationship characterised by the law as one of 'proximity' or
'neighbourhood' and 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
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."
In a passage which echoed what had been said by
Lord Goff in Smith v Littlewoods,
"I
think the law has now 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 varied duties of
care which the law imposes. We must now,
I think, recognise the wisdom of the words of Brennan J in the High Court
of Australia in Sutherland Shire Council
v Heyman (1985) 60 A.L.R. 1, 43-44,
where he said:
'It
is preferable, in my view, that the law should develop novel categories of
negligence incrementally and by analogy with established categories, rather
than by a massive extension of a prima facie duty of care restrained only by
indefinable "considerations which ought to negative, or to reduce or limit the
scope of the duty or the class of person to whom it is owed."'"
[85] Lord Atkin
observed in Donoghue v Stevenson 1932 S.C.(H.L.)31 at
page 44:
"the
liability for negligence, whether you style it such or treat it as in other
systems as a species of 'culpa', is no doubt based upon a general public
sentiment of moral wrongdoing for which the defender must pay".
The link between liability for negligence and moral
wrongdoing or fault is liable to be attenuated if the law of negligence pays no
regard to obvious disparities between the relative degrees of moral
blameworthiness and causal responsibility of the persons involved in the events
resulting in the pursuer's injury. Such
disparities are liable to exist, in particular, where one person is sought to
be held liable for harm which was deliberately inflicted by another
person. In such a situation, if the
defender comes under a liability for failing to control, or to warn about,
another person who deliberately injured the pursuer, the consequence may be to
deflect attention from that person, and to dilute the role of individual fault
in delictual liability. A further
consequence may be to burden disproportionately a person whose role in the
occurrence of the harm was relatively peripheral, but who may be required to
bear the entire burden of liability.
These consequences can be avoided in a number of ways. At the stage of awarding damages, some
jurisdictions have abandoned joint and several liability in favour of
proportionate liability. That is not however
an approach which is open under our law, other than in unusual circumstances of
the kind considered in Barker v Corus UK Ltd [2006] 2 A.C. 527. At the stage of considering causation, our
law has often treated the deliberate wrongdoing of a third party as
interrupting any causal link between the careless conduct of the defender and
the harm suffered by the pursuer. As
explained below, however, that approach is in reality premised on a view as to
whether the wrongdoing of the third party fell within the scope of any duty of
care owed by the defender. The remaining
way in which such consequences can be avoided is by addressing the relevant
concerns at the stage of deciding whether a duty of care exists, bearing in
mind that fairness, justice and reasonableness are necessary ingredients in the
imposition of a duty of care of a given scope.
Acts and omissions
[86] In most situations in which a pursuer
asserts the liability of the defender for the consequences of the act of a
third party, the court can take as its starting point the traditional view that
the law does not ordinarily impose an affirmative duty to protect others: as Lord Keith of Kinkel said in Yuen Kun-Yeu v Attorney-General of Hong Kong [1988] A.C. 175 at page 192, no
one is under a duty to shout a warning to a stranger about to walk over a
cliff. The fact that the failure to warn
is unreasonable, and foreseeably results in injury or death, does not create a
legal obligation. Following this
approach, a person will in general owe no duty of care with respect to the acts
of a third party.
[87] This point was
at the forefront of the approach adopted by Lord Goff in Smith v Littlewoods at pages 75-76:
"[A]
problem arises when the pursuer is seeking to hold the defender responsible for
having failed to prevent a third
party from causing damage to the pursuer or his property by the third party's
own deliberate wrongdoing. In such a
case, it is not possible to invoke a general duty of care; for it is well recognised that there is no general duty of care to prevent third
parties from causing such damage. The
point is expressed very clearly in Hart and Honoré, Causation in the Law, 2nd edn. (1985), when the authors
state, at pp.196-197: 'The law might
acknowledge a general principle that, whenever the harmful conduct of another
is reasonably foreseeable, it is our duty to take precautions against it ... But,
up to now, no legal system has gone so far as this.'
...
Why
does the law not recognise a general duty of care to prevent others from
suffering loss or damage caused by the deliberate wrongdoing of third
parties? The fundamental reason is that
the common law does not impose liability for what are called pure
omissions. If authority is needed for
this proposition, it is to be found in the speech of Lord Diplock in Dorset Yacht Co. Ltd v Home Office [1970] AC 1004, where he
said, at p.1060: 'The very parable of
the good Samaritan (Luke 10, v. 30) which was evoked by Lord Atkin in Donoghue v Stevenson 1932 SC (HL) 31 illustrates, in the conduct of the
priest and of the Levite who passed by on the other side, an omission which was
likely to have as its reasonable and probable consequence damage to the health
of the victim of the thieves, but for which the priest and Levite would have
incurred no civil liability in English law.'"
Or, I would add, in Scots law. In that regard, I would respectfully question
the view expressed in Burnett v Grampian Fire and Rescue Services 2007
S.L.T. 61 at page 68 that "the law of
[88] The general
reluctance of Scots law, as well as English law, to impose affirmative duties
to protect others is sometimes criticised on the basis that the distinction
between acts and omissions is meaningless:
the argument is sometimes illustrated by asking whether a negligent
driver's fault arises from his act of driving or from his omission to keep a
proper look-out or to apply the brakes.
That argument was answered by Lord Hoffmann in Stovin v Wise [1996] AC 923 at page 945:
"Of
course it is true that the conditions necessary to bring about an event always
consist of a combination of acts and omissions ... But this does not mean that the distinction
between acts and omissions is meaningless or illogical. One must have regard to the purpose of the
distinction as it is used in the law of negligence, which is to distinguish
between regulating the way in which an activity may be conducted and imposing a
duty to act upon a person who is not carrying on any relevant activity. To hold the defendant liable for an act, rather
than an omission, it is therefore necessary to be able to say, according to
common sense principles of causation, that the damage was caused by something
which the defendant did."
"To
make any one answerable for doing evil to others, is the rule; to make him answerable for not preventing
evil is, comparatively speaking, the exception".
As Gleeson CJ said in the High Court of Australia in Modbury Triangle Shopping Centre Pty Ltd v
Anzil (2000) 205 C.L.R. 254 at
para.28,
"If
people were under a legal duty to prevent foreseeable harm to others, the
burden imposed would be intolerable."
These moral and political considerations, together with
economic considerations, were drawn together by Lord Hoffmann, in a speech with
which Lord Goff and Lord Jauncey of Tullichettle agreed, in Stovin v Wise at pages 943-944:
"There
are sound reasons why omissions require different treatment from positive
conduct. It is one thing for the law to
say that a person who undertakes some activity shall take reasonable care not
to cause damage to others. It is another
thing for the law to require that a person who is doing nothing in particular
shall take steps to prevent another from suffering harm from the acts of third
parties (like Mrs Wise) or natural causes.
One can put the matter in political, moral or economic terms. In political terms it is less of an invasion
of an individual's freedom for the law to require him to consider the safety of
others in his actions than to impose upon him a duty to rescue or protect. A moral version of this point may be called
the 'why pick on me?' argument. A duty
to prevent harm to others or to render assistance to a person in danger or
distress may apply to a large and indeterminate class of people who happen to
be able to do something. Why should one
be held liable rather than another? In
economic terms, the efficient allocation of resources usually requires an
activity should bear its own costs. If
it benefits from being able to impose some of its costs on other people (what
economists call 'externalities,') the market is distorted because the activity
appears cheaper than it really is. So
liability to pay compensation for loss caused by negligent conduct acts as a
deterrent against increasing the cost of the activity to the community and
reduces externalities. But there is no
similar justification for requiring a person who is not doing anything to spend
money on behalf of someone else."
Accordingly the "neighbour" principle, as stated by Lord
Atkin in Donoghue v Stevenson (at page 44), is
concerned with an act which affects another person, rather than an omission to
prevent harm to such a person:
"The
rule that you are to love your neighbour becomes in law, you must not injure
your neighbour."
Referring to Lord Atkin's speech, Brennan J observed in Sutherland Shire Council v Heyman (1985) 157 C.L.R. 424 at
page 478:
"The
judgment of Lord Esher MR in Le Lievre v
Gould [1893] 1 QB 491 which Lord
Atkin cites makes it clear that the general principle expresses a duty to take
reasonable care to avoid doing what might cause injury to another, not a duty
to act to prevent injury being done to another by that other, by a third party,
or by circumstances for which nobody is responsible."
Liability for the
consequences of others' actions
[91] The courts
have sometimes reflected this point in their approach to causation, by treating
human action, and especially deliberate wrongdoing, as a novus actus interveniens;
but the approach which is adopted to causation is in reality premised
upon a decision (which may be implicit) as to whether a duty of care of a given
scope exists. This was explained by Lord
Hoffmann in Environment Agency v Express Car Co (Abertillery) Ltd [1999] 2 AC 22 at pages 30-32:
"In
answering questions of causation for the purposes of holding someone
responsible, both the law and common sense normally attach great significance
to deliberate human acts and extraordinary natural events. A factory owner carelessly leaves a drum
containing highly inflammable vapour in a place where it could easily be
accidentally ignited. If a workman,
thinking it is only an empty drum, throws in a cigarette butt and causes an
explosion, one would have no difficulty in saying that the negligence of the
owner caused the explosion. On the other
hand, if the workman, knowing exactly what the drum contains, lights a match
and ignites it, one would have equally little difficulty in saying that he had
caused the explosion and that the carelessness of the owner had merely provided
him with an occasion for what he did. ...
On
the other hand, there are cases in which the duty imposed by the rule is to
take precautions to prevent loss being caused by third parties or natural
events. A legal example is the well
known case of Stansbie v Troman [1948] 2 K.B. 48. A decorator working alone in a house went out
to buy wallpaper and left the front door unlocked. He was held liable for the loss caused by a
thief who entered while he was away. For
the purpose of attributing liability to the thief (e.g. in a prosecution for
theft) the loss was caused by his deliberate act and no one would have said
that it was caused by the door being left open.
But for the purpose of attributing liability to the decorator, the loss
was caused by his negligence because his duty was to take reasonable care to
guard against thieves entering.
These
examples show that one cannot give a common sense answer to a question of
causation for the purpose of attributing responsibility under some rule without
knowing the purpose and scope of the rule.
Does the rule impose a duty which requires one to guard against, or
makes one responsible for, the deliberate acts of third persons? If so, it will be correct to say, when loss
is caused by the act of such a third person, that it was caused by the breach
of duty. In Stansbie v Troman [1948]
2 K.B. 48, 51-52, Tucker L.J. referred to a statement of Lord Sumner in Weld-Blundell v Stephens [1920] A.C. 956, 986, in which he had said:
'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. Though A may have given the occasion for B's
mischievous activity, B then becomes a new and independent cause.'
Tucker
L.J. went on to comment:
'I
do not think that Lord Sumner would have intended that very general statement
to apply to the facts of a case such as the present where, as the judge points
out, the act of negligence itself consisted in the failure to take reasonable
care to guard against the very thing that in fact happened.'
Before
answering questions about causation, it is therefore first necessary to
identify the scope of the relevant rule.
This is not a question of common sense fact; it is a question of law. In Stansbie
v Troman the law imposed a duty which
included having to take precautions against burglars. Therefore breach of that duty caused the loss
of the property stolen. In the example
of the vapour-filled drum, the duty does not extend to taking precautions
against arsonists. In other contexts
there might be such a duty (compare The
Fiona [1994] 2 Lloyd's Rep. 506, 522) but the law of negligence would not
impose one."
"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."
His Lordship then proceeded to discuss a number of such
circumstances. I shall return to that
discussion below.
[93] A different
approach was adopted by Lord Mackay of Clashfern in the same case. As I understand his Lordship's speech, he
considered the fact that injury has been caused by the act of a person other
than the defender as bearing only upon the question whether that act should be
regarded as reasonably foreseeable by the defender. He said (at page 68):
"Unless
the judge can be satisfied that the result of the human action is highly
probable or very likely he may have to conclude that all that the reasonable
man could say was that it was a mere possibility. Unless the needle that measures the
probability of a particular result flowing from the conduct of a human agent is
near the top of the scale it may be hard to conclude that it has risen
sufficiently from the bottom to create the duty reasonably to foresee it.
In
summary I conclude, in agreement with both counsel, that what the reasonable
man is bound to foresee in a case involving injury or damage by independent
human agency, just as in cases where such agency plays no part, is the probable
consequences of his own act or omission, but that, in such a case, a clear
basis will be required on which to assert that the injury or damage is more
than a mere possibility."
This approach, requiring a high degree of probability before
there will be a "duty" reasonably to foresee the conduct of a third party, has
the effect of treating reasonable foreseeability not as purely factual but as a
normative concept which can be applied with sensitivity to the context, so as
to expand or restrict the scope of liability.
In many circumstances (including those of the present case) such an
approach would lead to the same result as Lord Goff's approach, but it raises
difficulties of principle. As Mason P
observed in WD & HO Wills (
"I
confess to difficulty in seeing that the existence of duty turns upon the level
of probability of harm ensuing. There
may be a very high probability that criminal activity causing harm may take
place in certain areas of Sydney, but non
constat that the occupier or adjacent neighbour has a duty of care to those
who suffer. The mechanism of
foreseeability is ultimately an unsatisfactory touchstone of a duty of care in
this area".
Moreover, as Lord Goff explained in his analysis of the
previous case law (discussed below), liability for harm caused by the
deliberate wrongdoing of others is not (on the cases) founded simply upon the
degree of foreseeability: some special
circumstance, such as an assumption of responsibility to protect from the risk
of injury by a third party, has been required.
Lord Goff explained why this was so, starting from the fundamental
reason that the common law does not ordinarily impose liability for what are
called pure omissions, and therefore does not ordinarily regard a defender as
being under a duty to take care to protect the pursuer from harm inflicted by a
third party.
[94] In the light
of Caparo, which Lord Goff's speech
in Smith v Littlewoods foreshadowed, and the subsequent case law (including British Telecommunications plc v James Thomson & Sons (Engineers) Ltd
1999 SC (HL) 9, where the House of Lords applied the Caparo approach in a Scottish appeal), it respectfully appears to
me that it is Lord Goff's approach which should be followed.
"Special" circumstances
[95] In considering the circumstances in which
the law imposes a duty of care to protect against the deliberate infliction of
injury by a third party, a possible starting point is the judgment of Dixon J
in Smith v Leurs (1945) 70 C.L.R. 256
at pages 261-262:
"apart
from vicarious responsibility, one man may be responsible to another for the
harm done to the latter by a third person;
he may be responsible on the ground that the act of the third person
could not have taken place but for his own fault or breach of duty. There is more than one description of duty
the breach of which may produce this consequence. For instance, it may be a duty of care in
reference to things involving special danger.
It may even be a duty of care with reference to the control of actions
or conduct of the third person. It is,
however, exceptional to find in the law a duty to control another's actions to
prevent harm to strangers. The general
rule is that one man is under no duty of controlling another man to prevent his
doing damage to a third. There are,
however, special relations which are the source of a duty of this nature. It appears now to be recognised that it is
incumbent upon a parent who maintains control over a young child to take
reasonable care so to exercise that control as to avoid conduct on his part
exposing the person or property of others to unreasonable danger. Parental control, where it exists, must be
exercised with due care to prevent the child inflicting intentional damage on
others or causing damage by conduct involving unreasonable risk of injury to
others."
That passage was cited with approval in Dorset Yacht (at page 1038 per
Lord Morris of Borth-y-Gest, at pages 1045-1046 per Viscount Dilhorne, at page 1055 per Lord Pearson and at page 1063 per Lord Diplock), and subsequently by Lord Goff in Smith v Littlewoods (at page 77), by Lord Keith in Yuen Kun Yeu v Attorney-General of Hong Kong (at page 193), and again by Lord
Goff in Davies v Radcliffe [1990] 1 W.L.R. 821 (at page 827).
[96] Dixon J
identified two broad types of situation in which a duty of care might
arise: those where a duty of care exists
"in reference to things involving special danger", and those where there is,
exceptionally, a duty to control the behaviour of a third party, arising from a
special relationship between the defender and the third party (such as that
between a parent and a young child). A
more elaborate analysis was carried out by Lord Goff in Smith v Littlewoods. His Lordship
identified (at pages 77-79) a number of "special circumstances in which a
defender may be held responsible in law for injuries suffered by the pursuer
through a third party's deliberate wrongdoing":
1. "[A]
duty of care may arise from a relationship between the parties, which gives
rise to an imposition or assumption of responsibility upon or by the defender,
as in Stansbie v Troman [1948] 2 K.B. 48, where such responsibility was held to
arise from a contract. In that case a
decorator, left alone on the premises by the householder's wife, was held
liable when he went out leaving the door on the latch, and a thief entered the
house and stole property. Such
responsibility might well be held to exist in other cases where there is no
contract, as for example where a person left alone in a house has entered as a
licensee of the occupier."
2. "[T]he
defender may be vicariously liable for the third party's act".
3. The
defender "may be held liable as an occupier to a visitor on his land".
4. "[A]
duty may arise from a special relationship between the defender and the third
party, by virtue of which the defender is responsible for controlling the third
party: see, for example, Dorset Yacht Co Ltd v Home Office".
5. "[I]n
a case between adjoining occupiers of land, there may be liability in nuisance
if one occupier causes or permits persons to gather on his land, and they
impair his neighbour's enjoyment of his land.
Indeed, even if such persons come on to his land as trespassers, the
occupier may, if they constitute a nuisance, be under an affirmative duty to
abate the nuisance."
6. "[W]here
the defender negligently causes or permits to be created a source of danger,
and it is reasonably foreseeable that third parties may interfere with it and,
sparking off the danger, thereby cause damage to persons in the position of the
pursuer. The classic example of such a
case is, perhaps, Haynes v Harwood [1935] 1 K.B. 146, where the
defendant's carter left a horse-drawn van unattended in a crowded street, and
the horses bolted when a boy threw a stone at them. A police officer who suffered injury in
stopping the horses before they injured a woman and children was held to be
entitled to recover damages from the defendant.
There, of course, the defendant's servant had created a source of danger
by leaving his horses unattended in a busy street. Many different things might have caused them
to bolt - a sudden noise or movement, for example, or, as happened, the
deliberate action of a mischievous boy.
But all such events were examples of the very sort of thing which the
defendant's servant ought reasonably to have foreseen and to have guarded
against by taking appropriate precautions.
In such a case, Lord Sumner's dictum
(Weld-Blundell v Stephens at p.986) can have no application to exclude liability."
7. "There
is another basis upon which a defender may be held liable for damage to
neighbouring property caused by a fire started on his (the defender's) property
by the deliberate wrongdoing of a third party.
This arises where he has knowledge or means of knowledge that a third
party has created or is creating a risk of fire, or indeed has started a fire,
on his premises, and then fails to take such steps as are reasonably open to
him (in the limited sense explained by Lord Wilberforce in Goldman v Hargrave [1967] 1 AC 645 at pp. 663-664) to prevent any such fire from damaging
neighbouring property."
"There
may be a duty to act if one has undertaken to do so or induced a person to rely
upon one doing so. Or the ownership or
occupation of land may give rise to a duty to take positive steps for the
benefit of those who come upon the land and sometimes for the benefit of
neighbours".
Similarly in Gorringe v
Calderdale Metropolitan Borough Council
[2004] 1 WLR 1057 his Lordship said, at para.17:
"Reasonable
foreseeability of physical injury is the standard criterion for determining the
duty of care owed by people who undertake an activity which carries a risk of
injury to others. But it is insufficient
to justify the imposition of liability upon someone who simply does
nothing: who neither creates the risk
nor undertakes to do anything to avert it."
Dorset Yacht and Haynes v Harwood are
examples of cases where the defender acted in such a way as to create a risk of
injury to others: in other words, they
are not, on analysis, "omission" cases at all, but cases where the defender
undertook a positive activity which carried the risk of causing damage to others. As Lord Hoffmann observed, in relation to Dorset Yacht, in Stovin v Wise at
page 948:
"All
members of the House plainly did not regard the case as one in which the
alleged breach of duty was merely an omission to use a statutory power. The negligence was caused by something which
the Borstal officers did, namely to use their statutory powers of custody to
bring the trainees onto the island, where they constituted a foreseeable risk
to boat owners, and then take no care to prevent them escaping in the night."
"In
this area of legal discourse, the opaque adjective 'special' has been much
invoked for want of a more informative concept.
It is not, in my view, a helpful adjective at all. It is an admission that questions of legal
policy control the scope of liability in such cases. What is 'special' in the circumstances, in
the relationships of the parties or in the vulnerability of the victim is what
a court says is 'special' for policy reasons.
It is far more honest and principled to acknowledge that this is so and
to deal with such cases taking into account frankly the issues of principle and
policy that are raised."
[99] Although Lord
Goff used the expression "special circumstances", his analysis of such
circumstances in Smith v Littlewoods is not opaque. The principles involved are those which I
have sought to discuss in the present opinion:
the basing of liability upon fault;
the individual responsibility of a person of full age and capacity for
the harm which he chooses to inflict on another person; the responsibility of the potential victim of
harm to take care for his own safety;
and the exceptional nature of an obligation to take positive action to
protect another person from harm. The
law of delict reflects these principles, in its treatment of criminal
wrongdoing, by making the wrongdoer liable for the harm which he inflicts, and
generally leaving it to the potential victim of crime to take such steps as he
thinks appropriate to protect himself from the risk of such harm (in addition
to the protection provided by society as a whole). It follows from the principles I have
mentioned that another person will only be liable for such harm if he stood in
a relationship to the pursuer which was "special" in respects which bear on the
application of those principles:
notably, if he has undertaken an activity which carried a risk of such
harm which would not otherwise have existed (as in Dorset Yacht or Haynes v Harwood), or has acted in such a way as
to induce the pursuer to rely upon him for protection against the risk of such
harm, and has then failed to take reasonable care to afford such protection (as
in Stansbie v Troman).
Cases involving public
authorities
[100] The problems which can result from extending
liability to peripheral parties, where the conduct of another person is the
immediate cause of the injury, are liable to be compounded where, as is
commonly the case, the defender is a public authority. Such authorities are naturally popular
targets to sue, since they have deep pockets.
They also have a multitude of statutory functions which enable them in
some measure to regulate, or at least to be informed about, the conduct of
third parties. The existence of such
functions makes it relatively easy to allege that the injury caused by a third
party is attributable to some extent to the failure of a public authority to
take steps to avert the risk which the third party might present. There is now a range of cases against, for
example, police forces, roads authorities and social work authorities, seeking
to hold them responsible for the consequences of the careless or criminal
conduct of other persons. Human nature
being what it is, the staff of public authorities may not infrequently act
without what the law would regard as reasonable care. The consequence of a wide extension of a duty
of care may thus be to distort the budgets of public bodies responsible for
discharging functions in the public interest.
[101] The effect of
statutory powers and duties on the common law liabilities of public authorities
was considered by the House of Lords in Stovin
v Wise. Lord Hoffmann, with whose speech the other
members of the majority of the House agreed, distinguished between acts and
omissions. In relation to acts, his
Lordship said (at page 947):
"In
the case of positive acts ... the liability of a public authority in tort is in
principle the same as that of a private person but may be restricted by its statutory powers and duties."
For example,
"it
may have discretionary powers to do things to achieve a statutory purpose
notwithstanding that they involve a foreseeable risk of damage to others. In such a case, a bona fide exercise of the
discretion will not attract liability"
(pages 946-947).
In relation to omissions, his Lordship distinguished between an omission
to perform a statutory duty and an omission to exercise a statutory power. A breach of statutory duty might or might not
be actionable, as a matter of construction of the statute:
"If
such a duty does not give rise to a private right to sue for breach, it would
be unusual if it nevertheless gave rise to a duty of care at common law ... if
the policy of the Act is not to create a statutory liability to pay
compensation, the same policy should ordinarily exclude the existence of a
common law duty of care"
(pages 952-953).
In relation to statutory powers, his Lordship cited Lord Romer's
statement of principle in East Suffolk
Rivers Catchment Board v
"Where
a statutory authority is entrusted with a mere power it cannot be made liable
for any damage sustained by a member of the public by reason of a failure to
exercise that power."
Lord Hoffmann observed (at page 953):
"I
prefer to leave open the question of whether the Anns case was wrong to create any exception to Lord Romer's
statement of principle in the East
Suffolk case ... But the fact that
Parliament has conferred a discretion must be some indication that the policy
of the Act conferring the power was not to create a right to compensation. The need to have regard to the policy of the
statute therefore means that exceptions will be rare.
In
summary, therefore, I think that the minimum preconditions for basing a duty of
care upon the existence of a statutory power, if it can be done at all, are, first, that it would in the
circumstances have been irrational not to have exercised the power, so that
there was in effect a public law duty to act, and secondly, that there are
exceptional grounds for holding that the policy of the statute requires
compensation to be paid to persons who suffer loss because the power was not
exercised"
(emphasis added). His
Lordship also noted (at page 953) that, on ordinary principles, a public
authority might be liable on the basis of representation and reliance in
respect of its use of its powers: the
example was given of a lighthouse authority which extinguished the light
without giving reasonable notice to mariners.
"cases
in which public authorities have actually done acts or entered into
relationships or undertaken responsibilities which give rise to a common law
duty of care. In such cases the fact
that the public authority acted pursuant to a statutory power or public duty
does not necessarily negative the existence of a duty. A hospital trust provides medical treatment
pursuant to the public law duty in the 1977 [National Health Service] Act, but
the existence of its common law duty is based simply upon its acceptance of a
professional relationship with the patient no different from that which would
be accepted by a doctor in private practice.
The duty rests upon a solid, orthodox common law foundation and the
question is not whether it is created by the statute but whether the terms of
the statute (for example, in requiring a particular thing to be done or
conferring a discretion) are sufficient to exclude it."
Lord Hoffmann reiterated (at paras. 23-25) that if a statute
did not create a private right of action, "it would be, to say the least,
unusual if the mere existence of [a] statutory duty could generate a common law
duty of care"; and the argument that
there was a duty of care would be even weaker if the statute merely conferred a
power. Similar observations were made by
other members of the House (e.g. at para.73 per
Lord Scott of Foscote, at paras. 90-91 per
Lord Rodger of Earlsferry and at para.100 per
Lord Brown of Eaton-under-Heywood).
[103] In considering
whether orthodox common law principles would lead to the imposition of a duty
of care (subject to any contrary conclusion which might arise from the
statutory powers and duties), the general approach is that adopted in Caparo and subsequent decisions of the
House of Lords and the Privy Council: an
approach, that is to say, which involves
"starting
with situations in which a duty has been held to exist and then asking whether
there are considerations of analogy, policy, fairness and justice for extending
it to cover a new situation ... the trend of authorities has been to discourage
the assumption that anyone who suffers loss is prima facie entitled to
compensation from a person (preferably insured or a public authority) whose act
or omission can be said to have caused it.
The default position is that he is not"
(Stovin v Wise at page 949 per Lord Hoffmann). In practice, in a wide range of cases
concerned with liability for the consequences of the acts of third
parties, considerations of public policy
have led to the decision that the imposition of liability would not be just and
reasonable: see e.g. Barrett v Enfield London Borough Council [2001] 2 AC 550 at page 559 per Lord Browne-Wilkinson. Emphasis has also been placed on the
importance of individuals taking responsibility for their own safety in respect
of risks of which they are or ought to be aware. In Tomlinson
v Congleton Borough Council
[2004] 1 AC 46, for example, Lord Hoffmann said (at page 85):
"A
duty to protect against obvious risks or self-inflicted harm exists only in
cases in which there is no genuine and informed choice, as in the case of
employees whose work requires them to take the risk, or some lack of capacity,
such as the inability of children to recognise danger (Herrington v British Railways
Board [1972] AC 877) or the despair of prisoners which may lead them to
inflict injuries on themselves: Reeves v Comr of Police of the Metropolis [2000] 1 AC 360."
The same approach can be seen in Gorringe, and is reflected in Lord Steyn's comment in that case (at
para.2) that
"the
courts must not contribute to the creation of a society bent on litigation,
which is premised on the illusion that for every misfortune there is a remedy".
"I
should add that the relationship of landowner, tenant and neighbour is, in its
nature, of the most widespread possible occurrence, and the introduction of the
duty of care in this connection would have far reaching implications in
relation to business as well as to residential premises."
The Vice-Chancellor also observed that the plaintiff had a
remedy against the family, and had indeed obtained an injunction against
them. I note that, on the question of
nuisance, the decision in Smith v Scott was cited with approval by Lord
Hoffmann in Southwark London Borough
Council v Tanner [2001] 1 AC 1
at page 15 (see also per Lord
Millett at page 22). The conclusion
on nuisance would plainly be undermined if, on the same facts, the landlord was
liable in negligence (cf. Mowan v Wandsworth London Borough Council [2001]
L.G.R. 228 at paras.19-20 per Sir
Christopher Staughton).
"That
remedy would have enabled the appellants to continue to enjoy their flat,
because either [the neighbour] would have obeyed that injunction or she would
have been in contempt of court with the serious consequences which would flow
from that situation ... the appellants have their remedy against [the neighbour]
without the intervention of their landlord."
His Lordship also criticised (at page 83) the fact that
"hopeless" proceedings had been pursued at public expense. Dillon LJ commented (at page 89):
"Indeed,
one can see formidable difficulties for a landlord if the landlord is to be
under pressure from both sides to bring proceedings whenever there is a dispute
between neighbours. The landlord being
in this case a housing authority has sufficient difficulties in the performance
of its housing duties in the public interest."
Dillon LJ also observed (at page 90) that an allegation
that the defenders had failed properly to exercise their statutory powers of
management should be raised by way of an application for judicial review.
[106] The decisions
in Smith v Scott and O'Leary v Islington London Borough Council are
consistent with the approach adopted by Lord Goff in Smith v Littlewoods. In particular, the defendant in each case had
not undertaken any activity which created a foreseeable risk of injury by a
third party whom the defendant had a responsibility to control: the letting of houses to tenants responsible
for their own behaviour, and themselves liable for their wrongful behaviour
towards their neighbours, was not such an activity, even though it was in each
case foreseeable that the tenants would cause a nuisance. Nor had the defendant given any express or
implied undertaking to protect the plaintiffs from the risk of such a nuisance.
[107] The case of Swinney v Chief Constable of Northumbria Police Force [1997] QB 464
concerned the question whether the police owed a duty of care to an
informant. The first plaintiff had
provided information to the police about the identity of the person responsible
for a serious crime. She had previously
stressed to the police that it was important that the information should not be
traced back to her. The information,
including the first plaintiff's details, was stolen from an unattended police
car and came into the hands of the alleged offender. The first plaintiff and her husband, the
second plaintiff, were then threatened, and were said to have suffered
psychiatric damage. They argued that the
police owed them a duty of care to keep the information secure, since the
police knew of the violent character of the person involved and had been given
the information in confidence. The Court
of Appeal held that it was arguable that a duty of care existed. All three judgments laid emphasis upon the first
plaintiff's request for confidentiality, and the police's knowledge of the
dangerous character of the subject of the information, as arguably giving rise
to an assumption of responsibility. Ward
LJ, for example, said (at page 486):
"It
seems to me that it is indeed properly arguable that ... there is a special
relationship between the plaintiffs and the defendant, which is sufficiently
proximate: proximity is shown by the
police assuming responsibility, and the plaintiffs relying upon that assumption
of responsibility, for preserving the confidentiality of the information which,
if it fell into the wrong hands, was likely to expose the first plaintiff and
members of her family to a special risk of damage from the criminal acts of
others ...".
Similar observations were made by Hirst LJ (at pages 479
and 484) and Peter Gibson LJ (at page 485). That reasoning is consistent with Lord Goff's
approach in Smith v Littlewoods: it was arguable that the police had expressly
or implicitly undertaken to take reasonable care to protect the plaintiffs from
the risk of retribution at the hands of the person informed against.
[108] The case of Hussain v Lancaster City Council [2002] QB 1 was of a similar nature to Smith v Scott and O'Leary v Islington London Borough Council. The question was whether a local authority
could be held liable in nuisance or negligence because they had failed to
prevent secure tenants, or members of their households, from committing
criminal acts of harassment against nearby property owners, inter alia by failing to exercise their
statutory power to seek the eviction of the tenants (a power which was
reflected in a provision of the tenancy agreement entitling the authority to
terminate the lease in such circumstances).
The Court of Appeal held that the claim should be struck out. In so far as the claim was based on the use
of land, it was indistinguishable from Smith
v Scott and O'Leary v Islington London
Borough Council. In so far as it was
based on the failure to exercise a statutory power, it would not be fair, just
and reasonable to hold the council liable in negligence in the exercise of the
powers in question. Hirst LJ observed
(at pages 27-28) that, if the case were allowed to proceed,
"all
that would be achieved would be a long and expensive trial doomed to certain
failure. Thus in the end they [the
plaintiffs] would gain no worthwhile advantage and the public would suffer
considerable disadvantage through the waste of precious court time and
resources in trying a hopeless case."
[109] In the case of W v Essex
County Council [2001] 2 AC 592 the House of Lords declined to strike out
a claim by parents who had agreed to act as foster parents for the defendant
council but had sought and received assurances that they would not be allocated
any child who was known to be, or suspected of being, a sexual abuser, as they
were anxious not to put their own children at risk. Despite that undertaking, the council placed
with the plaintiffs a child who was known to them to be a sexual abuser. That child was then said to have abused the
plaintiff's own children. The Court of
Appeal decided by a majority that the children's claims should not be struck
out, but that the parents, having suffered psychiatric illnesses as secondary
victims, had no arguable claim. In the
House of Lords, the discussion focused on the question whether the parents were
properly characterised as primary or secondary victims, which is not an issue
that arises in the present case. Lord
Slynn of Hadley, with whom the other members of the House agreed, however
expressed his agreement with the decision of the majority of the Court of
Appeal as to the children's claim. That
decision proceeded on the basis that, on the facts as pleaded, there had been
an assumption of responsibility by the council, as in Swinney v Chief Constable of
Northumbria Police Force. In that
regard, Judge LJ said ([1999] Fam 90 at pages 122-123):
"Although
the connection between a police informer and intending foster parents is not
immediately apparent, it is arguable that the relationship between an informant
and the police, and the public interest in providing a reasonable measure of
protection for the informant, is not dissimilar to the assumption of
responsibility for the safety of the parents and their children which
underpinned the assurances sought from and given by the council ... if the
'public policy' ground which normally has the effect of excluding liability for
negligence by the police in this area of their responsibility was not
sufficient to preclude the claim by Swinney,
the foundation for that conclusion, assumption of responsibility, applies
equally to the present claim.
In
my judgment the council assumed responsibility for the accuracy of their
positive assurances to the parents about G.
Relying on these assurances they accepted G into their home."
That approach, based on reliance upon an assumption of
responsibility, is consistent with Lord Goff's approach in Smith v Littlewoods. I note that T (A Minor) v Surrey County
Council [1994] 4 All E.R. 577 is a further example of the same type of
case.
[111] Analogous
questions have also been considered by courts in other common law
jurisdictions. Reference was made in
submissions to the decision of the High Court of Australia in Modbury Triangle Shopping Centre Pty Ltd v
Anzil, which concerned a claim by an
employee of a video shop in a shopping centre against the owner and manager of
the centre. The plaintiff had been
assaulted by unidentified assailants in an unlit car park attached to the
centre after finishing work late at night.
The car park formed part of the common areas of the centre, and was
under the management of the defendant.
The plaintiff maintained that the defendant had owed him a duty of care
to protect him against the risk of such an attack by keeping the area properly
lit. Although there was lighting, it had
been switched off at the material time.
There had been earlier incidents, and complaints about the danger
arising from the switching off of the lights before employees had left the
centre. A majority of the High Court
held that no duty of care was owed by the defendant to protect the plaintiff
from the risk of an assault by third parties.
It is unnecessary to consider whether, on the facts, the same result
would be reached under our law. The decision is of interest rather for the
general approach adopted to the question of liability for the criminal acts of
third parties.
[112] Gleeson CJ,
with whose reasoning Gaudron and Hayne JJ agreed, distinguished situations of
the kind discussed in Smith v Leurs and Dorset Yacht, where the defendant had a duty to control the third
party's actions, and situations (such as that in Stansbie v Troman) where
a duty of care was based on reliance and an assumption of responsibility. In relation to the latter point, Gleeson CJ
observed (at para.23):
"The
respondents submitted that the appellant assumed responsibility for the
illumination of the car park. That
submission confuses two different meanings of responsibility: capacity and obligation. The appellant owned and occupied the car
park, controlled the lights in it, and decided when they would be on and when
they would be off. But the relevant
question is whether the appellant assumed an obligation to care for the security
of persons in the position of the first respondent by protecting them from
attack by third parties."
Like Lord Goff in Smith
v Littlewoods, Gleeson CJ
considered (para.26) that "the general rule that there is no duty to prevent a
third party from harming another is based in part upon a more fundamental
principle, which is that the common law does not ordinarily impose liability
for omissions." His Honour noted that
Lord Mackay of Clashfern had suggested, in Smith
v Littlewoods, that a high degree of
foreseeability of criminal conduct might give rise to a duty to take reasonable
steps to prevent it. His Honour found it
unnecessary to express a concluded opinion in relation to that question, but
observed (at para.34) that
"Mason
P, in WD & HO Wills (Aust) Ltd v State Rail Authority of NSW (1998) 43
NSWLR 338 at 358-359, indicated a negative opinion on that question, and gave
cogent reasons for that indication",
and that
"such
a result would be difficult to reconcile with the general rule that one person
has no legal duty to rescue another".
In the same case, Hayne J, with whose judgment Gaudron J
expressed agreement, emphasised (at para.115) a point with which I began this
discussion:
"To
hold that the appellant owed a duty to take reasonable steps to prevent or
hinder the attack on the first respondent is not only to hold the appellant
responsible for conduct it could not control, it is to impose liability on it
when its contribution to the occurrence, compared with that of the assailants,
is negligible. As Professor Stapleton
points out ['Duty of Care: Peripheral
parties and alternative opportunities for deterrence' (1995) 111 L.Q.R. 301 at
317], the coherence of tort law depends upon 'the notions of deterrence and
individual responsibility'. Those values
would be diminished if the appellant is held to owe a duty of care of the kind
for which the respondents contend. To
accept the respondents' submissions would be to impose a duty which does
nothing to deter wrongdoing by the appellant or other occupiers. Further, it would shift financial
responsibility for the consequences of crime from the wrongdoer to individual
members of society who have little or no capacity to influence the behaviour
which caused injury."
[113] Canadian and
American case law was also discussed by the High Court of Australia in the Modbury Triangle case. From that discussion, Canadian authority
appears to be consistent with the approach adopted in this country, although
the question of the liability of a defendant for the criminal acts of a third
party does not appear to have reached the Supreme Court of Canada. The relevant cases are Allison v Rank City Wall
Canada Ltd (1984) 6 D.L.R. (4th) 144 and Q v Minto Management Ltd
(1985) 15 D.L.R. (4th) 581, affd (1986) 34 D.L.R. (4th)
767. In the Allison case, the plaintiff tenant of an apartment, who was
assaulted in the building's parking garage, was found to have relied on a
representation by the defendant landlord as to the security of the
building. In the Q case, the plaintiff tenant was raped by an employee of the
defendant landlord who had probably gained access to her apartment by means of
one of the master keys held by the defendant.
The defendant (but not the plaintiff) had known about an earlier rape of
another tenant, which had also been carried out by someone who had probably
used one of the master keys. Although
the discussion focused on the landlord's knowledge of the risk, the case could
be analysed as involving an assumption of responsibility, on which the
plaintiff had implicitly relied.
[114] Authorities
from the United States of America appear to me to be less relevant, since this
is a field of law which has developed differently in modern times in the USA
from in the United Kingdom. The
The present case
[115] As
Mr Mitchell's landlord, the defenders were party to a relationship with
him which imposed upon them a duty of care.
That does not however resolve the question whether they owed
Mr Mitchell a duty of care in respect of the risk that he might be
assaulted by Drummond. The relevant
question is not whether a landlord owes some
duty of care to his tenant: the question
is what was the scope of the duty owed by the defenders to Mr Mitchell.
[116] In considering
whether the defenders owed Mr Mitchell duties of care of the scope averred
(on the assumption that the pursuers' averments of fact are true), it is best
to consider those duties separately. The
first duty, put shortly, is a duty to institute legal proceedings against
Drummond for the recovery of possession by October 1999 at the latest. Liability is thus sought to be based on an
omission to exercise the discretionary power conferred by section 47(1) of
the 1987 Act. As previously discussed,
there is in general no liability in respect of pure omissions, whether or not
injury is a foreseeable consequence, and whether or not the omission displays a
lack of care for the pursuer's safety.
What was there that was special about the relationship between the
defenders and Mr Mitchell that could have imposed on the defenders an
obligation towards Mr Mitchell to institute proceedings? If Drummond had exercised his right to buy
under the 1987 Act, the defenders could not have instituted possession
proceedings against him, and Mr Mitchell would have had to take such steps as
he thought appropriate to deal with the problem of his neighbour, for example
by seeking an interdict. Those steps
remained open to him in the actual situation, where Drummond was a tenant. Why, in the latter situation, should Mr
Mitchell also be owed an obligation by the landlord? No analogy can be drawn with the special
circumstances listed by Lord Goff in Smith
v Littlewoods: this is not a case of occupier's
liability; nor is it analogous to Goldman v Hargrave; nor is it a case
of nuisance for which the defenders are responsible; nor is it a case where the defenders have
undertaken a hazardous activity, as in Dorset
Yacht or Haynes v Harwood;
nor is it a case of assumption of responsibility and reliance, analogous
to Stansbie v Troman, Swinney v Chief Constable of Northumbria Police Force or
W v Essex County Council. In
relation to the argument that there was a duty of care to institute possession
proceedings, the present case is however directly analogous to Smith v Scott, O'Leary v Islington London Borough Council, Hussain v Lancaster City Council and Mowan
v Wandsworth London Borough Council. In each of those cases the argument was
rejected, on grounds which I find persuasive.
[117] Furthermore,
even if (contrary to my view) a duty of care to institute possession
proceedings might be imposed in such circumstances upon a private landlord, the
nature of the discretionary power conferred by Parliament upon the defenders
cannot be disregarded. It is clear from Stovin v Wise and Gorringe that
liability can rarely, if ever, arise solely by reason of a failure to exercise
a statutory power, not only because liability rarely attaches to pure
omissions, but also because such liability would generally be inconsistent with
Parliament's intention. That point was
made in relation to legislation equivalent to the 1987 Act (and specifically in
relation to a provision imposing a duty whose performance would have conferred
a direct benefit upon the plaintiff) in O'Rourke
v Camden London Borough Council. In relation to the power to institute
possession proceedings on the ground of nuisance or annoyance, so as to move a
tenant (and his family) to other accommodation, the difficulties facing the
authority are apparent: there may be
claims and counter-claims, with the authority under pressure from both sides,
as Dillon LJ observed in O'Leary v
Islington London Borough Council; if the tenant is moved, he may be liable to
create similar difficulties for his new neighbours; if all the problem tenants are placed together, that may create more
severe social problems overall. An
omission to exercise the power conferred by section 47 of the 1987 Act
could hardly give rise to a liability in damages if it were a proper exercise
of a statutory discretion, as was explained in Stovin v Wise (e.g. at
pages 946-947 per Lord Hoffmann,
in a passage which I have already cited).
The pursuers do not however suggest that the discretion was exercised
unreasonably in a public law sense.
[118] The third duty
averred (postponing, for the present, consideration of the second duty) is a
duty to advise tenants "such as" Mr Mitchell that there "might be" a real
and immediate risk of injury from tenants "such as" Drummond. The generality of the supposed duty is
apparent. As Callinan J said in the Modbury Triangle case at para.134:
"The
problem about criminal conduct is that at one and the same time it may be both
unpredictable in actual incidence, wanton and random, and, on that account,
always on the cards."
In that regard, Callinan J cited the judgment of Weintraub CJ
of the Supreme Court of New Jersey in Goldberg
v Housing Authority of the City of
Newark 186 A 2d 291 at 293 (1962):
"Everyone
can foresee the commission of crime virtually anywhere and at any time."
[119] In a local
authority housing estate there are liable to be numerous residents who may
present a risk to the person or property of other residents; and the local authority, through the exercise
of their social work and other functions, may well be aware of that risk. There may, for example, be residents who have
been charged with an offence but admitted to bail; others who have been convicted of an offence
but remain at liberty pending the preparation of reports, or following the
imposition of a non-custodial sentence;
and others who have been released
from a custodial sentence but are subject to supervision or remain on a
register of offenders. There may be
those who are being dealt with by children's hearings, and those who are
subject to antisocial behaviour orders. There
may be other residents whose criminal behaviour is well-known, but against whom
it is impractical to take proceedings.
Knowledge of a risk to the safety of local residents, and in some cases
of a risk to particular individuals, will not be confined to the local
authority: it may be shared, for
example, by the sheriff who admitted an accused person to bail; by the court administration; by the accused person's legal
representatives; by the Crown; by the prison governor who allowed a
convicted person home leave; by the
Parole Board; and by many other
organisations. The potential width of
the claimed duty is limited only by the requirement that the risk which "might"
exist should be "real and immediate".
There is however nothing in the pleadings to suggest that such a risk
existed, or that the defenders knew or ought to have known of such a risk,
prior at least to the meeting on 31 July 2001 (which is the subject of the
seventh and final duty averred: whether
the defenders knew or ought to have known of such a risk, following the meeting,
is discussed below). More fundamentally,
there is nothing in the circumstances averred which, on any principle which I
can derive from the relevant authorities, would support the imposition of a
general obligation on the defenders to warn their tenants of potential risks to
their safety posed by other tenants.
Such an obligation is not inherent in the relationship of landlord and
tenant. The defenders had not acted in
such a way as to imply that they had undertaken such a responsibility; nor is it suggested that Mr Mitchell had
relied upon their doing so. Nor is it
suggested that such a responsibility arose by virtue of the defenders'
statutory powers and duties.
[120] The second duty
averred is a duty, following the report to the defenders of the incident which
occurred on 10 July 2001, to keep Mr Mitchell and the police informed
of the steps they proposed to take in relation to Drummond. This is closely related to the fourth, fifth
and sixth duties averred: namely, a duty
to consider Mr Mitchell's safety when arranging the meeting with Drummond
on
[121] Although the
pursuers' argument was not presented in this way, it might be argued that, when
the defenders responded to the reports of the incident on 10 July 2001,
they undertook an activity which carried an inherent risk to Mr Mitchell's
safety at the hands of Drummond, and that they therefore owed Mr Mitchell
a duty to take care to protect him from that risk. Under reference to Lord Hoffmann's
observation in Gorringe at para.17
that
"Reasonable
foreseeability of injury ... is insufficient to justify the imposition of
liability upon someone who simply does nothing:
who neither creates the risk nor undertakes to do anything to avert it",
it might be argued that the defenders did not do
"nothing": they acted in response to the
reports, and by doing so created the risk to Mr Mitchell's safety, and
therefore owed him a duty of care to protect him from that risk.
[122] On examination,
this argument has built into it an assumption that the defenders owed
Mr Mitchell the duty of care in question:
in other words, it assumes what it bears to prove. In the passage just cited, Lord Hoffmann was
adverting to the distinction between liability for acts (which attaches to the
person who "creates the risk") and for omissions (which attaches to the person
who "undertakes to do anything to avert it").
In order for a person's act to be regarded as creating a foreseeable
risk of injury, there must be what the law would regard as a causal
relationship between the act and the injury which is liable to occur: in the example given by Lord Hoffmann in Environment Agency v Express Car Co (at pages 30-32), in
the passage cited earlier, the factory owner who left out the drum containing
highly inflammable vapour did not do "nothing", but neither did he create the
risk that the drum might be ignited by an arsonist. As Lord Hoffmann said in Stovin v Wise (at
page 945), in another passage cited earlier,
"To
hold the defendant liable for an act, rather than an omission, it is therefore
necessary to be able to say, according to common sense principles of causation,
that the damage was caused by something which the defendant did."
Common sense principles of causation are not independent of
notions of duty, as was explained in the Express
Car Co case. Whether one considers that, according to common sense
principles of causation, Mr Mitchell's death was caused by the defenders'
actions depends on whether one considers that the defenders breached a duty to
take precautions against the risk that Mr Mitchell would be assaulted by
Drummond. The legal question whether the
defenders owed Mr Mitchell such a duty cannot therefore be answered by
considering, as a matter of common sense, whether the defenders' actions
created the risk to his safety. The
question has to be addressed by considering the principles established by the
existing law.
[123] The
investigation of a complaint by one person about another, where retribution
against the complainer may be a foreseeable possibility, is a common
activity. It is undertaken by a wide
range of bodies, including employers, schools, landlords, the police, the prosecution
service and the courts. The investigation
and consideration by a local authority of a report or complaint concerning the
behaviour of a tenant, in the course of carrying out their statutory functions
under the 1987 Act, is an example of an activity of that kind. There is nothing in the precedents discussed
in the present case which suggests that the law generally imposes upon an
authority carrying out a task of that nature a duty of care to protect the
complainer from the risk of retribution by the person who is the subject of the
complaint. Such a duty of care might however arise exceptionally if the
authority had assumed a responsibility to take care for the complainer's
safety, either expressly or because the circumstances were such that they must
be regarded as having done so (in particular, if they had induced the
complainer to rely upon their doing so).
The case of Swinney v Chief Constable of Northumbria Police is
an example of a situation of that kind.
The circumstances of the present case do not however establish such an
assumption of responsibility. In that
regard, the following factors are of particular significance.
[124] First, and
perhaps most importantly, there is no suggestion that Mr Mitchell
requested the defenders to keep him informed of any action taken, or that the
defenders agreed to do so, or that he relied on the defenders doing so. Nor is it suggested that he requested the
defenders to keep the police informed, or that the defenders agreed to do so,
or that he relied on the defenders' doing so.
The previous history of events would not in itself provide a basis for
such reliance. The defenders are said to
have interviewed Drummond, and then to have issued him with a written warning,
in 1995: the local councillor is said to
have been informed after the event, but there is no suggestion that
Mr Mitchell was informed.
Mr Mitchell is said to have been informed of an interview with
Drummond in 1998, but only after the event.
The defenders are said to have issued a further warning in 1999, and to
have informed the local councillor after the event: it is not suggested that Mr Mitchell was
informed. Mr Mitchell is said to
have been informed of an interview with Drummond in May 2000, and of the
service of the notice in January 2001, but on each occasion only after the
event.
[125] Secondly, the
absence of any suggestion that Mr Mitchell had requested the defenders to
keep him informed of their intentions is particularly significant given that he had himself been pressing the
defenders to act on his complaints: as explained
earlier, he had expressed concern to the defenders during June 2001 that they
did not seem to be acting on his complaints, and he had subsequently reported
to them the incident of 10 July. He
could be expected to have been as well aware as anyone of any risk that such
action might be followed by a violent reaction by Drummond. In that regard, the pursuers aver:
"The
defenders knew that James Drummond had a history of making death threats
against James Dow Mitchell ... The
defenders knew that James Drummond had threatened to harm James Dow Mitchell if
faced with the prospect of eviction [viz., in September 1999]".
These matters were equally within the knowledge of
Mr Mitchell himself.
[126] Thirdly,
Mr Mitchell was not dependent on the defenders to resolve the problem or
to secure his safety: as was observed in
Smith v Scott, O'Leary v Islington London Borough Council and Mowan v Wandsworth London Borough Council, the law provided him with a
remedy against Drummond.
[127] Finally, in
relation to this matter, the defenders' acting on reports and complaints
relating to Drummond, and considering whether to exercise their power under
section 47 of the 1987 Act, should not be confused with their assuming a
responsibility towards Mr Mitchell to take care to protect him from the
risk of attack by Drummond, such as would give rise to a legal obligation to do
so. As Gleeson L.J. observed in the
Modbury Triangle case (at para.23),
in a passage cited earlier, it is necessary to distinguish between different
senses of "responsibility". The
defenders had a statutory responsibility for the management and control of
their houses, and a responsibility to exercise their discretion under section
47; but the relevant question is whether
they assumed an obligation towards Mr Mitchell to take care to protect him from
the risk of attack by Drummond.
[128] There remains
the seventh duty averred: to advise
Mr Mitchell of what had happened at the meeting on
"liability
in negligence for harm caused by the deliberate wrongdoing of others cannot be
founded simply upon foreseeability".
[129] The more
fundamental question is why any legal obligation should have been imposed on
the defenders. In informing Drummond
that they intended to serve a fresh notice, that they would continue to monitor
any complaints, and that continuing antisocial behaviour could result in his
eviction, they were not undertaking an inherently dangerous activity. Their alleged fault is one of omission rather
than commission. The circumstances of
the present case are not however analogous to those of cases, such as Swinney, in which the argument that
there was a duty of care to take positive steps to protect from a third party
has been accepted. The defenders had not
assumed a responsibility to advise Mr Mitchell of Drummond's state of mind
during the meeting, nor had they induced Mr Mitchell to rely upon their doing
so. Not only is there no suggestion in
the pleadings that there had been such reliance, but the previous history of
events does not demonstrate any basis for such reliance. When a written warning was issued to Drummond
in 1995 the local councillor was informed, but it is not suggested that the
defenders informed Mr Mitchell. The
same occurred when a further warning was issued in 1999. The defenders are said to have written to
Mr Mitchell following interviews with Drummond in August 1998 and May
2000, and they are also said to have written to Mr Mitchell when the
notice was served in January 2001. But
that background would not support the proposition that the defenders had
induced Mr Mitchell to rely upon their writing to him following the
interview on 31 July 2001, far less that he was relying upon them to
telephone him or go to his house immediately after the meeting in order to
inform him of Drummond's state of mind before Drummond returned. Mr Mitchell encouraged the defenders to
take action against Drummond. If there
was a risk that Drummond would seek retribution, Mr Mitchell was able to
appreciate that risk and to take such precautions as he thought appropriate
(which might, if he were sufficiently concerned, have included requesting the
defenders to notify him at once of any steps taken against Drummond). Lord Goff's observations in Smith v Littlewoods (at page 82) about the danger of theft of property
appear to me to be apposite, mutatis
mutandis, to the danger of assault:
"[T]here
is no general duty to prevent third
parties from causing damage to others, even though there is a high degree of
foresight that they may do so. The
practical effect is that everybody has to take such steps as he thinks fit to
protect his own property, whether house or flat or shop, against thieves."
[130] Finally in
relation to this aspect of the case, it is notable that the pursuers'
difficulties in pleading a relevant duty of care are reflected not only in
their difficulties in averring circumstances in which the risk of injury could
be said to have been foreseeable, but also in their exiguous averments as
regards causation. They do not offer to
prove what would have happened if possession proceedings had been initiated
earlier, or if the police had been "alerted".
On that basis alone, the averments that there was a duty to initiate
proceedings earlier, and to alert the police, are irrelevant. All that is said is that, if Mr Mitchell
had been "alerted" that Drummond "was likely to be angry with him and violent
to him" (a likelihood which appears to rest on Drummond's having lost his
temper, and having then apologised for doing so, at the meeting), he "would
have been on the look out for James Drummond and would have taken steps to
avoid him". Hayne J observed in
relation to a similar contention in the Modbury
Triangle case (at para.106):
"[I]t
is not enough to say, as the respondents contended, that better lighting would
have enabled the first respondent to keep a better look out. Avoiding the assailants' attack depended as
much upon what they did to catch him unaware, as upon his ability to keep a
good look out for them."
As the opinions in that case make clear, there is also a
difficulty in principle in determining issues of causation on the basis of
common sense assumptions about rational behaviour, in a context where behaviour
does not conform to the expectations of common sense but is irrational and
unpredictable. Like the court in that
case, however, I base my conclusion on the more fundamental question of duty.
A need for evidence?
[131] On behalf of the pursuers, it was argued
that the court was constrained by authority to allow a proof before
answer. The argument was based in part
upon Article 2 of the European Convention on Human Rights: I consider that strand of the argument
below. It was also based on certain
observations made in Barrett v Enfield London Borough Council; and I shall consider that strand of the
argument now.
[132] The
observations in Barrett were
concerned with the striking out of a claim under English procedure. They were made in the shadow of the decision
of the European Court of Human Rights in Osman
v United Kingdom, judgment of
28 October 1998, Reports 1998-VIII,
p.3159, that the striking out of a negligence claim against the police, on the
basis that the imposition of a duty of care was not fair, just and reasonable,
conferred an immunity which was incompatible with the plaintiff's right of
access to a court under Article 6(1) of the Convention. In the subsequent case of Z v
[133] In Barrett, which was decided after Osman but before Z v United Kingdom, the
House of Lords strove to apply the reasoning in Osman to the English law of negligence, notwithstanding the evident
problems. Lord Browne-Wilkinson made
clear (at page 557) the need for caution in exercising the power to strike
out a claim, particularly where the law is not settled, and concluded (at
page 560):
"In
the present very unsatisfactory state of affairs, and bearing in mind that
under the Human Rights Act 1998 article 6 will shortly become part of
English law, in such cases as these it is difficult to say that it is a clear
and obvious case calling for striking out."
[134] In more recent
cases, the continuing value of the power to strike out has been
emphasised. Examples include K v Secretary
of State for the Home Department [2002] EWCA Civ 775 and Vicario v Commissioner of Police for the Metropolis [2007] EWCA Civ 1361. In the former case, Laws LJ said at para.10:
"I
would accept that the application of an idea (or collection of ideas) as broad
as 'fair, just and reasonable' to any given set of circumstances may depend on
nuances and details which will not appear in a pleading. But in the ordinary way, a competent
pleading, which alleges all the relevant facts in accordance with the
claimant's instructions, either discloses a cause of action or it does not."
In the case of Vicario,
Jacobs LJ, in a judgment with which the other members of the Court of Appeal
agreed, said at para.44:
"I
would only add that the history of the tort of negligence shows that Lord
Browne-Wilkinson's words of caution [in Barrett
v Enfield London Borough Council]
should not be regarded as too prescriptive.
After all many important authorities on the topic, and especially about
whether or not there was a duty of care, have been decided in strike out or
preliminary point circumstances."
Jacobs LJ listed some examples from the House of Lords. They included Donoghue v Stevenson,
"One
cannot imagine what our current law of negligence would look like without these
cases, all decided without a trial."
"Finally,
I do not think that the decision of your Lordships in this case should be taken
as casting any doubt on the value of the Scottish procedure of disposing of
suitable cases on relevancy without inquiry into the facts ... If it can be shown that, even if the pursuer
succeeds in proving all that he avers, still his case must fail, it appears to
me to be highly advantageous that time and money should not be spent on
fruitless inquiry into the facts".
3. THE CASE UNDER THE HUMAN RIGHTS ACT
[136] The first
sentence of Article 2 of the Convention provides:
"Everyone's
right to life shall be protected by law".
That short sentence has generated a considerable volume of
case law, both in the
[137] In Osman v
"The
Court notes that the first sentence of Article 2(1) 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. It is common ground that
the State's obligation in this respect extends beyond its primary duty to
secure the right to life by putting 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. It is thus
accepted by those appearing before the Court that Article 2 of the
Convention may also 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."
In the last sentence quoted, the reference to "certain
well-defined circumstances" is significant.
Osman itself concerned a
complaint that the police had failed to protect the lives of the second
applicant and his father. It is one of
the functions of the police, in appropriate circumstances, to take "preventive
operational measures to protect an individual whose life is at risk from the
criminal acts of another individual." In
that regard, the Court said (at 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. Another
relevant consideration is the need to ensure that the police exercise their
powers to control and prevent crime in a manner which fully respects the due
process and other guarantees which legitimately place restraints on the scope
of their action to investigate crime and bring offenders to justice, including
the guarantees contained in Articles 5 and 8 of the Convention.
In
the opinion of the Court where there is an allegation that the authorities have
violated their positive obligation to protect the right to life in the context
of their above-mentioned duty to prevent and suppress offences against the
person, it must be established to its 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."
[138] The obligation
to take preventive operational measures to protect an individual whose life is
at risk from the criminal acts of another individual is not confined to the
police. In Edwards v
"In
the context of prisoners, the Court has had previous occasion to emphasise that
persons in custody are in a vulnerable position and that the authorities are
under a duty to protect them. It is
incumbent on the State to account for any injuries suffered in custody, which
obligation is particularly stringent where that individual dies".
The Court therefore examined whether the authorities knew or
ought to have known of the existence of a real and immediate risk to the life
of the prisoner in question and, if so, whether they failed to take measures
within the scope of their powers which, judged reasonably, might have been
expected to avoid that risk.
[139] A similar
approach was followed by the Grand Chamber in Mastromatteo v Italy,
judgment of 24 October 2002, Reports
2002-VIII, p.123, which concerned the killing of a passer-by by an armed robber
who had absconded while on leave from prison.
In that case, the Court observed (at para.72) that one of the essential
functions of a prison sentence is to protect society, for example by preventing
a criminal from re-offending and causing further harm. The Court however emphasised (at para.68) the
limits of the positive obligation to protect an individual whose life is at
risk from the criminal acts of another individual:
"That
does not mean, however, that a positive obligation to prevent every possibility
of violence can be derived from this provision ... Such an obligation must be interpreted in a
way which does not impose an impossible or disproportionate burden on the
authorities, 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 (see Osman, cited above, pp.3159-60, § 116).
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. A positive obligation
will arise, the Court has held, where it has been established that the
authorities knew or ought to have known at the time of the existence of a real
and immediate risk to the life of an identified individual or individuals from
the criminal acts of a third party and that they failed to take measures within
the scope of their powers which, judged reasonably, might have been expected to
avoid that risk (see Osman, cited
above, pp.3159-60, § 116; Paul and Audrey Edwards v the United Kingdom, no. 46477/99, §
55, ECHR 2002-II; and Bromiley v the United Kingdom (dec.), no. 33747/96, 23 November
1999."
[140] In a series of
cases concerned with health services, on the other hand, the Court has declined
to find that the circumstances were such as to impose a positive obligation to
take preventive operational measures to protect life: instead, the Court has emphasised what it has
sometimes described as the "procedural" aspect of Article 2. Thus in Powell
v United Kingdom, decision of
4 May 2002, Reports 2000-V,
p.397, where the complaint was that a child had died as a result of medical
negligence, the Court distinguished Osman
(at pages 420-422):
"The
Court observes that the applicants do not in any manner allege or imply that
their son was intentionally killed by the doctors responsible for his care and
treatment at the material time. They
aver, on the other hand, that the responsible doctors knew or can be considered
in the circumstances to have known that their son's life was at immediate risk
but failed dismally to take the necessary measures to treat him. In the Court's opinion, the reasoning
employed by the applicants in support of their argument that the doctors'
inadequate response to their son's condition at the time amounted to a breach
of the State's duty to protect the right to life cannot be sustained. The reasoning they advance is derived from
the above-mentioned Osman judgment.
However, the Court was addressing in that case the circumstances in
which a duty may devolve on law enforcement agencies to take preventive operational
measures to protect an individual whose life is at risk from the criminal acts
of a third party. The issue before the
court in the instant case is an entirely different one in terms of both the
context and scope of the obligation.
Admittedly
the first sentence of Article 2 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 (see the L.C.B. v the
United Kingdom judgment of 9 June 1998, Reports 1998-III, p. 1403, § 36). The Court accepts that it cannot be excluded
that the acts and omissions of the authorities in the field of health care
policy may in certain circumstances engage their responsibility under the
positive limb of Article 2.
However, where a Contracting State has made adequate provision for
securing high professional standards among health professionals and the
protection of the lives of patients, it cannot accept that matters such as
error of judgment on the part of a health professional or negligent
co-ordination among health professionals in the treatment of a particular
patient are sufficient of themselves to call a Contracting State to account
from the standpoint of its positive obligations under Article 2 of the
Convention to protect life.
In
the Court's opinion, the events leading to the tragic death of the applicants'
son and the responsibility of the health professionals involved are matters
which must be addressed from the angle of the adequacy of the mechanisms in
place for shedding light on the course of those events, allowing the facts of
the case to be exposed to public scrutiny - not least for the benefit of the
applicants.
The
Court has attached particular weight to the procedural requirement implicit in
Article 2 of the Convention. It
recalls that the obligation to protect the right to life under Article 2,
read in conjunction with the State's general duty under Article 1 to
'secure to everyone within [its] jurisdiction the rights and freedoms defined
in [the] Convention', requires by implication that there should be some form of
effective official investigation when individuals have been killed as a result
of the use of force by, inter alia,
agents of the State (see the Kaya v Turkey judgment of 19 February 1998, Reports 1998-I, pp. 322, 324, §§ 78,
86). This obligation is not confined to
cases where it has been established that the killing was caused by an agent of
the State. Nor is it decisive whether
members of the deceased's family or others have lodged a formal complaint about
the killing with the relevant investigatory authority. The mere knowledge of the killing on the part
of the authorities gives rise ipso facto
to an obligation under Article 2 of the Convention to carry out an
effective investigation into the circumstances surrounding the death (see the
Ergi v Turkey judgment of 28 July 1998, Reports 1998-IV, p.1778, § 82).
The
Court considers that the procedural obligation as described cannot be confined
to circumstances in which an individual has lost his life as a result of an act
of violence. In its opinion, and with
reference to the facts of the instant case, the obligation at issue extends to
the need for an effective independent system for establishing the cause of
death of an individual under the care and responsibility of health
professionals and any liability on the part of the latter."
In the last sentence quoted, the requirement that the
deceased should have been "under the care and responsibility of health
professionals" is of significance.
[141] That approach
has been followed in subsequent cases concerned with the provision of health
services. In the Calvelli and Ciglio
judgment of
"Those
principles apply in the public-health sphere too. The aforementioned positive obligations
therefore require States to make regulations compelling hospitals, whether
public or private, to adopt appropriate measures for the protection of their
patients' lives. They also require an
effective independent judicial system to be set up so that the cause of death
of patients in the care of the medical profession, whether in the public or the
private sector, can be determined and those responsible made accountable."
On that basis, Article 2 was held to be applicable.
[142] Finally, I note
that in Öneryildiz v Turkey, judgment of 30 November
2004, Reports 2004-XII, p.1, which
concerned the conduct by a public authority of a dangerous industrial activity,
the Grand Chamber again referred to the positive obligation of States to take
appropriate steps to safeguard the lives of those within their jurisdiction, and
stated (at para.71):
"The
Court considers that this obligation must be construed as applying in the
context of any activity, whether public or not, in which the right to life may
be at stake."
The Court mentioned, by way of example, earlier cases concerning
nuclear tests and toxic emissions from chemical factories. In relation to such
"dangerous activities", as the Court described them (at para.90), emphasis was
placed on the need for licensing and other regulatory controls.
[143] In the present
case, the context bears no resemblance to that of such cases as Osman, Edwards or Mastromatteo. The defenders are not a law enforcement
agency; nor was either Drummond or Mr
Mitchell their prisoner. Nor can
Mr Mitchell be said to have been "under the care and responsibility" of
the defenders, as was the position in the cases concerned with health services,
such as Powell and Calvelli and Ciglio. Nor were the
defenders carrying on a dangerous activity.
In short, neither the nature of the defenders' activities nor their
functions entailed a responsibility to protect Mr Mitchell's life. Although the Strasbourg case law is in a
state of development, none of the authorities cited establishes that
Article 2 is applicable to the pursuers' complaint, either so as to impose
an obligation to take preventive operational measures to protect
Mr Mitchell's life (as in the law enforcement agency cases), or so as to
impose an obligation to implement procedures set up to protect the right to
life (as in the health care cases). In
those circumstances, it is questionable whether this court ought to proceed in
a way which would appear to extend the scope of Article 2 beyond the
existing case law of the
""the
Convention is an international instrument, the correct interpretation of which
can be authoritatively expounded only by the
[144] It is however
unnecessary in the present circumstances to attempt to anticipate whether the
European Court would regard Article 2 as applicable to the pursuers'
complaint. It is sufficient for the
decision of this case that the facts averred by the pursuers are not such as to
establish that the defenders either knew or ought to have known at the time
that there was a real and immediate risk to Mr Mitchell's life (that being
the only basis on which a breach of Article 2 is alleged). It is apparent from such cases as Osman, Edwards and Mastromatteo
that the requirement that the authority in question knew or ought to have known
of a real and immediate risk to life imposes a high test. As Lord Carswell said in In re Officer L [2007] 1 WLR 2135 at para.20, in a speech with
which the other members of the House agreed:
"It
is in my opinion clear that the criterion is and should be one that is not
readily satisfied: in other words, the
threshold is high. There was a
suggestion in para 28 of the judgment of the [Court of Appeal] in R (A) v Lord Saville of Newdigate [2001] 1 WLR 1249, 1261 (also known as
the Widgery Soldiers case, to
distinguish it from the earlier case with a very similar title) that a lower
degree would engage article 2 when the risk is attendant upon some action
that an authority is contemplating putting into effect itself. I shall return to this case later, but I do
not think that this suggestion is well-founded.
In my opinion the standard is constant and not variable with the type of
act in contemplation, and is not easily reached."
There is in my opinion no basis set out in the averments for
saying that, when Drummond left the meeting on
[146] In short, the
United Kingdom in my opinion fulfilled its obligations under Article 2, in
relation to Mr Mitchell, when the following circumstances are considered:
1. The State
fulfilled "its primary duty to secure the right to life by putting 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" (Osman, para.115).
2. That law
enforcement machinery was implemented.
The death of Mr Mitchell was investigated by the police, and the
person responsible was prosecuted, convicted and sentenced.
3. Under the
civil law, that person was also liable in damages.
4. If there were
other aspects of the events leading up to Mr Mitchell's death which
merited investigation in the public interest, such as the defenders' dealings
with Drummond on the day in question, the legal system in
5. If Mr
Mitchell's death had been caused by negligence on the part of the defenders,
the legal system afforded his relatives the possibility of bringing an action
in the civil courts, in which damages could be awarded. Such proceedings were brought by the
pursuers, with the assistance of legal aid.
They were entitled to recover the relevant documents. Their action has been the subject of a public
hearing, both at first instance and on appeal, at which they have been
represented by counsel at public expense.
4. CONCLUSION
[148] In the circumstances, I agree with the Lord
Ordinary's conclusion that this action should be dismissed.
|
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
|
Lady PatonLord ReedLord Penrose |
[2008] CSIH 19A1700/03OPINION OF LORD PENROSE in RECLAIMING MOTION in the cause ANNE MITCHELL and KARIN
MITCHELL (Assisted Persons) Pursuers and Reclaimers; against Defenders and Respondents: _______ |
Act: McEachran Q.C., Miss
Alt: A. Smith Q.C., R.W.
Dunlop; Legal Services Department, City
of
29 February 2008
[149] The facts of
this case have been set out fully by Lady Paton and Lord Reed, and I need not
repeat them except so far as is necessary to provide a background to the views
I have formed on the issues before the court.
[150] I agree with
Lord Reed that the pursuers' case based on breach of Article 2 of the European
Convention on Human Rights is without foundation, and that the Lord Ordinary
did not err in failing to allow a proof before answer in respect of that case.
[151] The obligation
of the state extends beyond refraining from the intentional and unlawful taking
of life to a positive obligation to take appropriate steps to safeguard the
lives of those within its jurisdiction: Osman v
"It is thus accepted by those
appearing before the Court that Article 2 of the convention may also 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 criminal acts of another individual."
As Lord Reed's analysis of the authorities shows, the present
case does not fall within any well-defined set of circumstances recognised to
date.
[152] In complex
modern societies, exercise of the powers and implement of the obligations of
the state must be devolved to numerous executive agencies for their efficient
discharge. The identification of a body
as a core public authority, as it is accepted the defenders are, does not of
itself define the scope of that body's obligations under Article 2. In Mastromatteo
v
"A positive obligation will arise ... where
it has been established that the authorities knew or ought to have known at the
time of the existence of a real and immediate risk to the life of an identified
individual or individuals from the criminal acts of a third party and that they
failed to take measures within the scope of their powers which, judged
reasonably, might have been expected to avoid that risk."
Unless the authority has the power to take measures that
might reasonably have been expected to avoid the risk, a positive obligation
will not arise.
[153] A local
authority exercising housing functions does not have powers of immediate and
direct intervention that might avoid a risk of unlawful killing such as those
exercised by the police or prison authorities.
That is implicitly recognised in the framing of the duties relied on. The alleged incompatibility with the
Convention rights of the late Mr Mitchell is said to arise from the defenders'
failure to advise him of the meeting to take place on
[154] Warning an
individual of an imminent risk of death from anticipated criminal acts does
nothing to reduce the risk: it may alert the individual to the need to take
steps for his own protection or the need to seek the support and protection of
a public authority having relevant powers and the duties of intervention, such
as the police. The housing authority's
powers and duties could not extend to any form of action designed to protect Mr
Mitchell's life from Mr Drummond. There
was no action that could reasonably have been expected of them, as housing
authority, to avoid a real and immediate risk to Mr Mitchell's life. Ground of appeal 2(a) is, in my opinion,
without substance.
[155] Ground of
appeal 2 (b) appears to me to be misconceived.
The state is undoubtedly under an obligation to establish systems that,
individually or in cumulo, provide for effective investigation of allegations
of state responsibility for the death of an individual, and for establishing
liability in appropriate cases to those adversely affected by that death. But that obligation may be discharged by a
combination of forms of procedure each of which may have particular objectives
and be subject to particular conditions.
[156] In
[157] In respect of
civil proceedings, issues may arise as to the pursuer or pursuers' title and
interest to sue; as to the identification of the appropriate defender; as to
time bar and other factors bearing on competency of the proceedings, and,
perhaps more questionably, as to the relevancy of the complaint. The state's obligation to provide for enquiry
does not, in the context of civil proceedings, elide the pursuer's
responsibility to plead a case capable of meeting the ordinary tests applicable
to the formulation and presentation of the claim.
[158] The absolute
proposition in ground of appeal 2 (b) cannot, in my opinion, be valid. Yet, as the debate proceeded, it became
increasingly clear that that was the direction the argument took. The pursuer had simply to state a claim based
on a death, and identify a 'state' target, to become entitled as of right to
proof in civil proceedings. That is
unacceptable. As Lord Reed has said, the
duty to investigate is secondary to the duty to protect life. If averments of breach of the primary duty to
protect life fail to reach a standard requiring proof, or proof before answer,
there is no basis on which the secondary duty to investigate can be engaged.
[159] In respect of
the pursuers' common law case, I agree with Lady Paton that the pursuer's
averments at page 21C that:
"It was their duty to take reasonable
care to act on repeated complaints of a serious nature which were made over a
prolonged period of time. It was their
duty to take reasonable care to instigate legal proceedings for the recovery of
property from violent tenants such as James Drummond within a reasonable period
of time after complaints had been made, and in any event by October 1999 at the
latest"
should be excluded from probation, for the reasons given by
her, and that quoad ultra proof
before answer should be allowed. Over
broad areas, I agree with Lord Reed's analysis of the law as it has been
developing in this area. But I do not
agree with his conclusion on the application of the emerging principles to the
facts of this case at this stage in its procedure. Whatever the final outcome of the case, the
issue at this stage is whether there should be proof before answer of the
parties' averments, bearing in mind the test in Jamieson v Jamieson 1952
S.C. (H.L.) 44.
[160] The pursuers'
averments are not a model of cogent analysis and logical development of
argument, and, as Lady Paton has indicated, there was considerable refinement
in the course of presentation of the appeal.
The pursuers allege that the defenders are a third party not directly
involved in the criminal violence that caused Mr Mitchell's death. As Lord Reed's persuasive analysis has shown,
a third party will only be liable for such harm if he has undertaken an
activity which carries a risk of such harm which would not otherwise have
existed, or has acted in such a way as to induce the victim to rely on him for
protection against the risk of the harm and then failed to take reasonable care
to afford the required level of protection.
[161] Accepting those
tests for present purposes, it appears to me to be premature to conclude that
the pursuers must fail on their averments taken pro veritate. The defenders knew of the violent
propensities of Mr Drummond, and were well aware from repeated reports both of
the actual violence and anti-social behaviour of which he had been responsible;
that the late Mr Mitchell had been a particular target of that conduct; and
that it was likely to be precipitated by a threat to Mr Drummond's tenancy that
he, Mr Drummond, would be likely to perceive as resulting from Mr Mitchell's
complaints. They had previously
recognised the position of Mr Mitchell by involving him and his local councillor
in discussions about their procedural intentions. Nevertheless they did initiate the procedures
that could result in Mr Drummond's ejection and proceeded to interview him,
leaving Mr Mitchell in ignorance of the need to consider, alone or with the
police, what steps were necessary for his safety. There are many obstacles that the pursuers
would require to overcome to succeed in this case after proof. But I cannot subscribe to the view that they
must fail.
[162] In the
circumstances I would recall the Lord Ordinary's interlocutor, of new sustain
the defender's first plea in law to the extent of repelling the pursuers'
second plea in law, and excluding from probation the pursuers' averments at
page 21 identified above and in article XIV of the condescendence, and
otherwise would allow parties a proof before answer of their respective
averments.