MITCHELL AND ANOTHER V GLASGOW CITY COUNCIL [2009] UKHL 11
FACTS:-
In 2001, one James Mitchell was attacked by his next door neighbour, James Drummond and he died as a result of his injuries. Both men were tenants of the local housing authority. Mr Drummond had long been an anti-social neighbour. He had previously and had threatened to kill Mr Mitchell on numerous occasions. In 2001 the city council brought proceedings against Mr Drummond to evict him from his house. They then invited him to a meeting, which he attended but he became abusive. He then calmed down and apologised, left the meeting whereupon he attacked and killed Mr Mitchell.
Mr Mitchell’s wife and daughter brought an action against the city council in negligence and also under Article 2 of the European Convention on Human Rights.
HELD:-
Lord Hope went over the facts of the case. In relation to the negligence case, he would make three points:-
In the case of Caparo Industries plc v Dickman [1990] 2 AC 605 Lord Bridge set out the familiar three fold test which required in addition to foreseeability and a relationship of proximity, that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. Lord Hope listed a series of cases where a duty of care had been found. These were:-
In relation to this case, the issue was whether the relationship between landlord and tenant was such that it was fair, just and reasonable that they should be held liable in damages for the omissions to warn that were relied upon in this case.
There were a number of policy considerations here. Imposing a duty might deter social landlords from intervening to reduce the incidence of anti-social behaviour. The situation might have been different if there had been a basis for saying that the defenders had assumed a responsibility to advise the deceased of the steps that they were taking, or in some other way had induced the deceased to rely on them to do so. Lord Hope would hold that as a general rule, a duty to warn another person that he was at risk of loss, injury or damage as the result of the criminal act of a third party, would arise only where the person who is said to be under that duty has by his words or conduct assumed responsibility for the safety of the person who was at risk.
The case under the Human Rights Act 1998
Section 6(1) of the 1998 Act stated that it was unlawful for a public authority to act in a way that was incompatible with a Convention right. However the test here was a high one. Lord Hope referred to the case of Osman v United Kingdom (2000) 29 EHRR 245 where the European Court said that it had to be established to the court’s satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judge reasonably, might have been expected to avoid that risk. Lord Hope also referred to the case of Van Colle v Chief Constable of Hertfordshire Police [2008] 3 WLR 593.
In this case, there was no basis for saying that the defenders ought to have known that there was a real and immediate risk to the deceased’s life. Therefore the appeal of Glasgow City Council would be allowed.
Lord Scott referred to the South African case of Silva Fishing Corporation (Pty) Ltd v Maweza [1957] SA 256 where a company that owned a fishing vessel became aware that one of its vessels was in distress, but did nothing to save it. South Africa’s Appellate Division found them liable, but the situation in this case was very different.
Lord Rodger considered the terms of the Housing (Scotland) Act 1987 and the contractual terms of the tenants’ leases. There was no term in the Act or the lease that put the landlord under a duty to protect the tenant from injury inflicted by another tenant.
He referred to a number of cases on this issue including:-
Under Scots law there was no equivalent general duty on a landlord to protect one tenant from an assault by the tenant of another house. The mere creation of a statutory power to evict Mr Drummond, the assailant in this case, could not be regarded as imposing a common law duty to exercise that power. Even if the Council had decided not to exercise that power, that might have been subject to judicial review, but there would be no duty of care.
In this case, the council had not even reached a decision as to whether they would evict Mr Drummond.
There was then the issue of Article 2 of the Human Rights Convention. The pursuers in this case claimed that the council knew or ought to have known that there was a real and immediate risk to Mr Mitchell’s life on the day he was killed. Lord Rodger said that if the council had allowed their housing stock to fall into disrepair, so that tenants were at risk of suffering life threatening injuries or of becoming seriously ill, they could have been in breach of Article 2. The circumstances in this case simply did not amount to a breach. The public authority with the positive duty to protect Mr Mitchell was the police. Therefore even if the council officials had been aware of a real and immediate threat to Mr Mitchell’s life from Mr Drummond, they would not have been under any Article 2 obligation to prevent it. Lord Roger would therefore allow the appeal by the council.
Baroness Hale agreed with the law lords above. There were some qualifications to the foreseeability principle. By way of example the House of Lords in MacFarlane v Tayside Health Board [2000] 2 AC 29 decided that the costs of looking after a child following a failed sterilisation were not recoverable, because it was not fair, just and reasonable. Secondly foreseeability alone was not enough to impose a duty to safeguard a person from the criminal acts of third parties. Thirdly it was not fair, just and reasonable to impose such a duty in a case as this.
Lord Brown said that generally speaking people were not liable for the crimes of others. Landlords were under no obligation to supervise their tenants and prevent their committing criminal acts. He referred to the cases of Smith v Chief Constable of Sussex Police [2008] 3 WLR 493 and Van Colle (see above). If the police owed no duty of care in the circumstances arising there, it would be highly surprising if the pursuers owed a duty of care in the circumstances of the present case. Lord Brown would also dismiss the appeal.
FACTS:-
In 2001, one James Mitchell was attacked by his next door neighbour, James Drummond and he died as a result of his injuries. Both men were tenants of the local housing authority. Mr Drummond had long been an anti-social neighbour. He had previously and had threatened to kill Mr Mitchell on numerous occasions. In 2001 the city council brought proceedings against Mr Drummond to evict him from his house. They then invited him to a meeting, which he attended but he became abusive. He then calmed down and apologised, left the meeting whereupon he attacked and killed Mr Mitchell.
Mr Mitchell’s wife and daughter brought an action against the city council in negligence and also under Article 2 of the European Convention on Human Rights.
HELD:-
Lord Hope went over the facts of the case. In relation to the negligence case, he would make three points:-
- Foreseeability of harm was not of itself enough for the imposition of a duty of care
- The law does not normally impose a positive duty on a person to protect others
- The law does not impose a duty to prevent a person from being harmed by the criminal act of a third party based simply upon foreseeability
In the case of Caparo Industries plc v Dickman [1990] 2 AC 605 Lord Bridge set out the familiar three fold test which required in addition to foreseeability and a relationship of proximity, that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. Lord Hope listed a series of cases where a duty of care had been found. These were:-
- Haynes v Harwood [1935] 1 KB 146
- Attorney General of the British Virgin Islands v Hartwell [2004] 1 WLR 1273
- Dorset Yacht Co Ltd v Home Office [1970] AC 1004
- Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335
- Swinney v Chief Constable of Northumbria Police Force [1997] QB 464
- Stansbie v Troman [1948] 2 KB 48
- W v Essex County Council [2001] 2 AC 592
- R(Amin) v Secretary of State for the Home Department [2003] UKHL 51
- Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360
In relation to this case, the issue was whether the relationship between landlord and tenant was such that it was fair, just and reasonable that they should be held liable in damages for the omissions to warn that were relied upon in this case.
There were a number of policy considerations here. Imposing a duty might deter social landlords from intervening to reduce the incidence of anti-social behaviour. The situation might have been different if there had been a basis for saying that the defenders had assumed a responsibility to advise the deceased of the steps that they were taking, or in some other way had induced the deceased to rely on them to do so. Lord Hope would hold that as a general rule, a duty to warn another person that he was at risk of loss, injury or damage as the result of the criminal act of a third party, would arise only where the person who is said to be under that duty has by his words or conduct assumed responsibility for the safety of the person who was at risk.
The case under the Human Rights Act 1998
Section 6(1) of the 1998 Act stated that it was unlawful for a public authority to act in a way that was incompatible with a Convention right. However the test here was a high one. Lord Hope referred to the case of Osman v United Kingdom (2000) 29 EHRR 245 where the European Court said that it had to be established to the court’s satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judge reasonably, might have been expected to avoid that risk. Lord Hope also referred to the case of Van Colle v Chief Constable of Hertfordshire Police [2008] 3 WLR 593.
In this case, there was no basis for saying that the defenders ought to have known that there was a real and immediate risk to the deceased’s life. Therefore the appeal of Glasgow City Council would be allowed.
Lord Scott referred to the South African case of Silva Fishing Corporation (Pty) Ltd v Maweza [1957] SA 256 where a company that owned a fishing vessel became aware that one of its vessels was in distress, but did nothing to save it. South Africa’s Appellate Division found them liable, but the situation in this case was very different.
Lord Rodger considered the terms of the Housing (Scotland) Act 1987 and the contractual terms of the tenants’ leases. There was no term in the Act or the lease that put the landlord under a duty to protect the tenant from injury inflicted by another tenant.
He referred to a number of cases on this issue including:-
- Weld-Blundell v Stephens [1920] AC 956
- Maloco v Littlewoods Organisation 1987 SC (HL) 37
- Bullock v Tamiami Trail Tours Inc (1959) 266 F 2d 326
Under Scots law there was no equivalent general duty on a landlord to protect one tenant from an assault by the tenant of another house. The mere creation of a statutory power to evict Mr Drummond, the assailant in this case, could not be regarded as imposing a common law duty to exercise that power. Even if the Council had decided not to exercise that power, that might have been subject to judicial review, but there would be no duty of care.
In this case, the council had not even reached a decision as to whether they would evict Mr Drummond.
There was then the issue of Article 2 of the Human Rights Convention. The pursuers in this case claimed that the council knew or ought to have known that there was a real and immediate risk to Mr Mitchell’s life on the day he was killed. Lord Rodger said that if the council had allowed their housing stock to fall into disrepair, so that tenants were at risk of suffering life threatening injuries or of becoming seriously ill, they could have been in breach of Article 2. The circumstances in this case simply did not amount to a breach. The public authority with the positive duty to protect Mr Mitchell was the police. Therefore even if the council officials had been aware of a real and immediate threat to Mr Mitchell’s life from Mr Drummond, they would not have been under any Article 2 obligation to prevent it. Lord Roger would therefore allow the appeal by the council.
Baroness Hale agreed with the law lords above. There were some qualifications to the foreseeability principle. By way of example the House of Lords in MacFarlane v Tayside Health Board [2000] 2 AC 29 decided that the costs of looking after a child following a failed sterilisation were not recoverable, because it was not fair, just and reasonable. Secondly foreseeability alone was not enough to impose a duty to safeguard a person from the criminal acts of third parties. Thirdly it was not fair, just and reasonable to impose such a duty in a case as this.
Lord Brown said that generally speaking people were not liable for the crimes of others. Landlords were under no obligation to supervise their tenants and prevent their committing criminal acts. He referred to the cases of Smith v Chief Constable of Sussex Police [2008] 3 WLR 493 and Van Colle (see above). If the police owed no duty of care in the circumstances arising there, it would be highly surprising if the pursuers owed a duty of care in the circumstances of the present case. Lord Brown would also dismiss the appeal.