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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: http://www.bailii.org/scot/cases/ScotCS/2008/CSIH_19.html
Cite as: [2008] CSIH 19, 2008 GWD 10-192, [2008] ScotCS CSIH_19, 2008 SLT 368, 2008 SC 351, 2008 SCLR 375

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

 

Lady Paton

Lord Reed

Lord Penrose

 

 

 

 

 

[2008] CSIH 19

A1700/03

 

 

OPINION OF LADY PATON

 

in

 

RECLAIMING MOTION

 

in the cause

 

ANNE MITCHELL and KARIN MITCHELL (Assisted Persons)

Pursuers and Reclaimers;

 

against

 

GLASGOW CITY COUNCIL

Defenders and Respondents:

 

_______

 

 

 

Act: McEachran Q.C., Miss Stirling; Drummond Miller W.S. (Pursuers and Reclaimers)

Alt: A. Smith Q.C., R.W. Dunlop; Legal Services Department, City of Edinburgh Council (Defenders and Respondents)

 

 

29 February 2008

Introduction

[1] James Dow Mitchell, aged 72, ("the deceased") died on 10 August 2001 as a result of an assault by his neighbour James Drummond ("Drummond") on 31 July 2001. Drummond was subsequently charged with murder. On 12 July 2002, the Crown accepted his plea to culpable homicide. It was therefore unnecessary for evidence to be led at a trial.

[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.

 

History of events

[4] The pursuers' pleadings give the following outline of events:

[5] In the early 1980s, Drummond lived in Middleton Street, Glasgow. He behaved in an anti-social manner. He attacked his neighbours with a tyre lever.

[6] In May 1985, Drummond took up a local authority tenancy at 225 Bellahouston Drive, Mosspark, Glasgow. In March 1986, the deceased (then aged 56) and his family moved into the neighbouring local authority house at 221 Bellahouston Drive.

[7] In the early hours of the morning of 23 December 1994, Drummond played loud music in his home. The deceased banged on the wall to remonstrate. Drummond retaliated by banging on the wall, shouting abuse, and coming to the deceased's front door armed with an iron bar. Drummond battered the deceased's door leaving five holes. He also smashed the deceased's windows. The police arrived and arrested Drummond. Drummond shouted that the deceased was a dead man, and that on release from jail, he (Drummond) would kill the deceased. The defenders subsequently replaced the deceased's broken windows. In view of the effect of Drummond's behaviour on the deceased's health, and the deceased's concerns for himself and his family, the defenders installed a new, more secure, front door.

[8] On 27 December 1994, Drummond followed the deceased home, shouting abuse and telling him that he was "f---ing dead meat after the court case". The police attended.

[9] On 1 and 2 January 1995, there were further incidents of abuse. The police attended. By March 1995, the defenders had interviewed Drummond about his behaviour. They gave him a written warning about his future conduct. They specifically warned him that if matters persisted they would instigate legal proceedings against him, namely an action to recover possession of his house. The defenders advised the deceased to keep a record of complaints against Drummond.

[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 12 August 1999, Victim Support wrote to the defenders, advising that other residents in Bellahouston Drive feared retaliation from Drummond if they gave evidence against him, and that the incidents were adversely affecting the deceased and his family. On 31 August 1999, a resident at 216 Bellahouston Drive (Helen Anderson) gave the defenders a signed statement confirming an incident which had taken place on 26 August 1999. Mrs Anderson stated that she had heard Drummond threatening to kill the deceased on that occasion, and on many other occasions; that the police had removed Drummond in hand-cuffs on many occasions; that Drummond intimidated elderly residents; and that there was a risk of real injury to the deceased and his wife. Mrs Anderson asked the defenders to take action. During an incident on 3 September 1999, Drummond made threats to the deceased about what he would do to him if the defenders were to evict him (Drummond). On 31 March 2000, Drummond made detailed threats about killing the deceased.

[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 12 June 2001, which was video-recorded. The deceased reported the incident to the defenders, and also expressed concern that the defenders did not appear to be taking action about his complaints. There was a further incident on 10 July 2001. The police were involved. Drummond was arrested and charged with breach of the peace. The defenders received a police report about the incident.

[13] In total, the police were involved in at least forty incidents.

[14] By letter dated 26 July 2001, the defenders invited Drummond to a meeting to be held on 31 July 2001. The purpose of the meeting was to discuss the incident on 10 July 2001, and the first Notice of Proceedings for Recovery of Possession. Given the continuing problems, the defenders were considering issuing a follow-up Notice of Proceedings for Recovery of Possession. The defenders did not advise the deceased about the meeting.

[15] The meeting began at 2 p.m. on 31 July 2001. The defenders advised Drummond that a fresh Notice of Proceedings for Recovery of Possession would be served on him, and that the defenders would continue to monitor complaints about his behaviour. The defenders advised Drummond that his continuing anti-social behaviour towards the deceased could result in his eviction. Drummond lost his temper and became abusive. He then apologised to the defenders for having lost his temper.

[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 Bellahouston Drive. At about 3 p.m. he violently assaulted the deceased. Subsequently, on 10 August 2001, the deceased died of his injuries.

 

Pursuers' action against the defenders

[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).

[19] Article 2 provides:

" 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 11th July, 2001 that they would require to consider the incident of 10th July, 2001 and whether it would merit further steps being taken towards recovery of possession of the property. They knew or ought to have known by 26th July, 2001 that James Drummond was likely to be hostile towards James Dow Mitchell following the meeting they were arranging for 31st July, 2001. They took no steps to advise James Dow Mitchell that a meeting had been arranged for 31st July, 2001 and that he might be in danger. The defenders knew that James Drummond had lost his temper at the meeting on 31st July, 2001. The defenders took no steps to advise James Dow Mitchell that they had warned James Drummond about his behaviour, and that James Dow Mitchell might be at risk of assault. The defenders had previously advised James Dow Mitchell of the steps they were taking in relation to James Drummond. By letters dated 3rd March, 1995 and 9th September, 1999 they advised Councillor Gibson that written warnings had been given. By letters dated 25th August, 1998 and 30th May, 2000 the defenders advised James Dow Mitchell that they had interviewed James Drummond in connection with complaints. At a meeting on 2nd June, 2000 they advised James Dow Mitchell that they would ask James Drummond to come to their offices. By letter dated 8th January, 2001 the defenders advised Councillor Iris Gibson of steps which had been taken. When the First Notice of Proceedings was served in January 2001 the defenders advised James Dow Mitchell of the situation. The defenders had previously advised James Dow Mitchell of the steps being taken in respect of his complaints. Having been aware since 11th July, 2001 of the incident on 10th July, 2001 the defenders ought to have considered what steps required to be taken to protect James Dow Mitchell, including alerting him and the Police. They ought to have advised him that a meeting was scheduled for 31st July, 2001 and that his personal safety might be at risk. They could have done so by letter at the same time as they sent the letter to James Drummond advising him of the meeting. They ought to have advised him of the outcome of the meeting on 31st July, 2001 and that his personal safety might be at risk. They could have telephoned him or attended at his home. They did not do so. With reference to the defenders' averments in answer admitted that Drummond and his wife were summoned to a meeting with the defenders on 31st July, 2001 at 2 p.m. Admitted that Drummond was further warned about his behaviour. Admitted that he was advised that a fresh Notice of Proceedings for Recovery of Possession would be served on him and that the defenders would continue to monitor any complaints made about his behaviour. Admitted that within an hour of the meeting of 31st July, 2001 Drummond carried out the assault from which the deceased subsequently died. Quoad ultra the defenders' averments in answer are denied.

...

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 31st July, 2001. 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. It was their duty to alert the Police. It was their duty to advise James Dow Mitchell of what had happened at the meeting on 31st July, 2001 and of James Drummond's state of mind during that meeting. The defenders knew that James Drummond had a history of making death threats against James Dow Mitchell. The defenders knew that the health of James Dow Mitchell and his family had suffered since 1995 and was continuing to suffer as a result of James Drummond's continued threats. The defenders knew that James Drummond had threatened to harm James Dow Mitchell if faced with the prospect of eviction. In each and all of these duties the defenders failed and by their failure caused the death of James Dow Mitchell. They knew or ought to have known that if they failed in respect of the duties incumbent upon them injury and damage to James Dow Mitchell would be likely to occur. Had they duly performed the duties incumbent upon them James Dow Mitchell would not have died. James Dow Mitchell would have been alerted that James Drummond was likely to be angry with him and violent to him. James Dow Mitchell would have been on the look out for James Drummond, and would have taken steps to avoid him. The defenders' averments in answer are denied.

...

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 31st July, 2001. By failing to advise him that a meeting was to take place and of the events at the meeting on 31st July, 2001 the defenders acted in a way which was incompatible with his right to life. They acted unlawfully. Reference is made to the preceding Articles of Condescendence. The defenders' averments in answer are denied."

 

Dismissal of the action and subsequent reclaiming motion

[21] A debate took place before Lord Bracadale. By interlocutor dated 30 June 2005, the Lord Ordinary sustained the defenders' first plea-in-law and dismissed the action, for the reasons set out in his judgement, reported at 2005 SLT 1100. The pursuers reclaimed that interlocutor, and lodged the following Grounds of Appeal:

"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 - UK (2001) 34 EHRR 97; R (Amin) - Secretary of State for the Home Department [2004] 1 AC 653; Fayed - v - Lord Advocate 2004 SC 568.

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."

 

Submissions for the pursuers and reclaimers

[22] Counsel for the pursuers submitted that this was an unusual case involving the terrorising of a 72-year-old man by a neighbourhood bully. A key feature of the case was the defenders' assumption of responsibility for the problem: for example, in 1995 they issued a written warning to Drummond; they collected information against Drummond (such as the statement given on 31 August 1999 by Helen Anderson); they advised the deceased to log complaints against Drummond; in January 2001 they served a Notice on Drummond which might lead to his eviction; they called Drummond to a meeting on 31 July 2001 to discuss a further Notice, again with a view to his eviction. The latter meeting acted as a foreseeable trigger to Drummond's violence. Thus a situation of risk had arisen as a result of action on the part of the state. Against that background, the Lord Ordinary had gone too far too fast in dismissing the action without an exploration of the facts, for the following reasons:

 

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 United Kingdom or European jurisprudence. However the circumstances of the present case came closer to the circumstances in Van Colle v Chief Constable of Hertfordshire Police [2007] 1 WLR 1821 than to the circumstances in decisions relating to medical negligence, such as Powell v United Kingdom (2000) 30 EHRR CD 362, and R (Takoushis) v Inner North London Coroner [2006] 1 WLR 461. Thus the threshold of a "real and immediate risk to life", as set out in Osman v United Kingdom (1998) 29 EHRR 245, was modified to some extent. There had to be a real risk on the facts, but "immediate" in the sense that the risk was present and continuing at the material time. Reference was made to Osman at inter alia paragraphs 115 to 116, and Van Colle at inter alia paragraphs 12, 16 to 17, 20 to 22, 34, 38, 40, 53 to 62, 64, 66 to 76, and 81 to 83. In the present case, the question whether in July 2001 the defenders knew or ought to have known of the existence of such a real and immediate risk to the life of the deceased from the criminal acts of a third party (Drummond) should be explored in evidence, a fortiori where the Lord Ordinary had decided that the issue of foreseeable risk of injury at common law required proof: paragraphs [55] to [56] of his judgement. Neither risk could be properly assessed without a proof before answer.

[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.

[26] Van Colle (paragraphs 81-83) also established that causation was to be measured by asking whether the protective measures could have had a real prospect of altering the outcome, rather than by applying a "but for" test.

[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.

[31] Esto the Caparo tripartite test should be applied, the Lord Ordinary had erred in holding that it would not be fair, just and reasonable in all the circumstances to impose a duty of care on the defenders, for the following reasons:

(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 London Borough of Islington (1983) 9 HLR 83, discretion was not available to the defenders as a defence. The defenders in those cases had been exercising their powers in a clearly negligent way.

(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.

[32] In summary, the Lord Ordinary erred in dismissing the case, and there was sufficient on the record to justify an inquiry in terms of Jamieson v Jamieson 1952 S.C. (H.L.) 44, both in respect of human rights and at common law.

[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.

 

Submissions for the defenders and respondents

[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 Birmingham City Council [2007] 3 WLR 112. However the nature of the function being carried out by the defenders was relevant, in that Article 2 should be construed in a way which did not impose a disproportionate burden on the defenders. The function in the present case was that of a public housing authority providing an individual with a private home, a function much closer to that of the NHS providing medical services than that of law enforcement officers policing society. While therefore there were no decisions precisely in point, the medical negligence cases such as Powell v United Kingdom (2000) 30 EHRR CD362, R (Takoushis) v Inner North London Coroner [2006] 1 WLR 461, at paragraphs 24 et seq., 84 to 88, and 90 to 96, and Savage v South Essex Partnership NHS Foundation Trust [2006] EWHC 3562 (QB), paragraphs 2 to 3, 11 to 14, and 20 to 21, were more analogous to the present case than authorities such as Osman v United Kingdom (1998) 29 EHRR 245 and Van Colle v Chief Constable of Hertfordshire Police [2007] 1 WLR 1821. Thus in order to succeed under Article 2, the pursuers had to make averments of gross negligence which might justify, for example, a charge of culpable homicide. No such averments were made, and the pursuers' case must fail.

[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 United Kingdom (2002) 35 EHRR 177 paragraph 40. The pursuers had to show that the something which might have been done would have avoided the death. The averments did not come up to that standard.

[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 United Kingdom (2002) 34 EHRR 97 did not assist the pursuers, for several reasons: (i) Article 13, upon which the decision was based, was not part of the Human Rights Act. (ii) The Human Rights Act carried its own remedy for breach. Accordingly Z v United Kingdom could not advance matters in the present case, where (a) if there were relevant averments of a breach of the substantive obligation in Article 2, there was a remedy (namely, the present action); but (b) if there were no relevant averments of such a breach, there was no need for a remedy. The reclaimers' argument under Ground 2(b) was circular and without merit, and should be rejected.

 

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 Ch. 314; O'Leary v London Borough of Islington (1983) 9 HLR 83, at pages 87 to 88. Those cases confirmed that a duty of care did not arise to protect a tenant from the wrongful act of another tenant. The alleged duties contended for by the pursuers (i.e. to evict, and to warn the deceased) did not come into existence, because it would not be fair, just and reasonable to impose such a liability on a landlord who had not assumed responsibility for the tenant.

[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 (Scotland) Act 1987. Section 46(1) overrode the terms of the lease. That subsection provided:

"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.

[45] Counsel accepted that the decision whether or not to initiate eviction proceedings fell within Lord Browne-Wilkinson's category (a) at page 735F-H, but that the serving of the notice and the subsequent procedure (including any alleged duty to warn) might well fall within category (b). If that were the case, the defenders' position was that it was not fair, just and reasonable to impose on the defenders a duty of care owed to the pursuers in those circumstances.

[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 Northumbria [1997] QB 464; Gibson v Orr 1999 SC 420; and an Australian case Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61. None of those categories applied in the present case. The duties contended for, namely a duty to instigate eviction procedures, and a duty to warn the deceased as condescended on, were minor premises flowing from the major premise set out at page 21A-B of the Reclaiming Print, as follows:

"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 Lancaster City Council [2000] QB 1, at pages 5E and 24G to 26D, it was held that it would not be fair, just and reasonable to hold the council negligent in the exercise of its discretionary statutory powers under the housing or highway legislation. In Mowan v Wandsworth London Borough Council [2001] LGR 228, a local authority was held not liable for a tenant's unauthorised nuisance. The court also rejected any question of liability arising in negligence (page 232 et seq.). Those two cases supported the contention that, applying the fair, just and reasonable test, there was no duty of care owed by the defenders to the deceased or his dependants.

[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 (Scotland) Act 1987. (ix) If the court were to hold that a duty of care did exist, questions would arise relating to the nature and extent of that duty. There would be attempts to extend the duty to, for example, alerting the police, installing an alarm, and installing a CCTV system. (x) The pursuers' claim was in effect an attempt to fix the defenders with liability for a tenant's criminal conduct. There was no authority for such a proposition, and indeed there were decisions in which such a proposition had been rejected (at least two on the basis that the proposition was not fair, just and reasonable).

[50] On a consideration of those factors, counsel invited the court to hold that it would not be fair, just and reasonable to impose a duty of care on the defenders in the circumstances of the present case.

[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.

 

Additional authorities

[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 South Essex Partnership NHS Foundation Trust [2007] EWCA Civ 1375, and Vicario v The Commissioner of Police for the Metropolis [2007] EWCA Civ 1361. This court did not consider it necessary to be addressed on those cases.

 

Discussion

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 221/225 Bellahouston Drive, and that there was consequent reliance upon the defenders by the deceased and his family to protect them from harm. Counsel drew attention to the ways in which the defenders' assumption of responsibility could be demonstrated. In particular, in March 1995 the defenders interviewed Drummond about his behaviour. They gave him a written warning about his future conduct. They specifically warned him that they would instigate legal proceedings against him, namely an action to recover possession of his house, if matters persisted. They collected information against Drummond, such as the statement given on 31 August 1999 by Helen Anderson. They advised the deceased to log his complaints against Drummond. In January 2001, they warned Drummond that he might be evicted if his behaviour did not improve. At the end of January 2001, they served a Notice of Proceedings for Recovery of Possession on Drummond, which could lead to his eviction for anti-social behaviour. Once the defenders had assumed responsibility for the resolution of the problem, they had the powers and the resources to adopt a variety of solutions: the choice was theirs, but whatever option they took, the deceased and his family were dependent upon them for a resolution of the problem in a way which would not cause harm either to him or to his family.

[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 (Scotland) Act 1987. I therefore agree with counsel for the defenders that regard must be had to authorities such as X (Minors) v Bedfordshire County Council [1995] 2 AC 633, Stovin v Wise [1996] AC 923, and Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057. Having regard to those authorities, I accept that a public authority landlord's decision whether or not to evict an anti-social tenant should be categorised as a matter of discretion and policy, falling within category (a) of X (Minors) at page 735 F-H. It is for the local authority, having considered all relevant issues including inter alia the nature of the complaints, possible alternative solutions, inter-departmental and other repercussions, and resource implications, to decide whether or not to instigate eviction proceedings. It is of course possible that a public authority landlord might in so doing act ultra vires or unreasonably in the sense defined in Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, but no such averments are made in this case. It follows that I agree with the Lord Ordinary's approach so far as relating to the alleged duty to instigate eviction proceedings. An additional criticism of the alleged duty is that there are no averments adequately justifying a dead-line of October 1999.

[59] However once the local authority made a decision to instigate eviction proceedings, I consider that their subsequent actions when exercising their statutory powers could fall within category (b) of X (Minors) at page 735. In other words, the pursuers would, on their averments, be entitled to explore whether there had been a negligent performance of the defenders' statutory functions. The pursuers contend that there was negligent performance in that the steps taken in the course of potential eviction proceedings included summoning Drummond to a meeting, the nature and content of which constituted a reasonably foreseeable trigger to Drummond's hostility towards the deceased, likely to provoke the physical violence towards the deceased which did in fact ensue. They aver a duty to warn the deceased and his family about the meeting and about Drummond's reaction at the meeting. They pray in aid the known background of Drummond's aggression, hostility, and repeated threats to kill the deceased if he (Drummond) were to be evicted; the extensive history of police involvement; the obvious trigger to Drummond's violence created by the nature and content of the meeting; and the fact that the defenders had taken the precaution of advising the deceased about a similar meeting earlier that year, in January 2001. The pursuers aver that, had the deceased received a warning about the meeting, he would have taken active steps to avoid Drummond, and therefore would not have died.

[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 31 July 2001. In other words, applying the test in Jamieson, I am not persuaded that, in the particular circumstances of this case, the pursuers must necessarily fail insofar as they seek to establish a duty of care to warn the deceased and the police about the meeting on 31 July 2001, and causation, all as set out at pages 21D to 23A of the Reclaiming Print. Issues to be resolved once the facts are established would include proximity; foreseeability; whether the defenders' actings could be said to have brought them within the category of assumption of responsibility by the defenders with a consequent reliance upon them by the deceased and his family for protection from harm; whether there was a negligent performance of statutory functions within category (b) of X (Minors); and the question of causation.

[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.

[66] As I am of the opinion that a proof before answer should be allowed, it is not necessary for me to deal with the pursuers' Ground of Appeal 2(b).

 

Decision

[67] For the reasons given above, I would recall the Lord Ordinary's interlocutor dated 30 June 2005, and sustain the defenders' first plea-in-law only to the extent that the following averments at page 21C of the Reclaiming Print are excluded from probation, namely:

"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 Paton

Lord Reed

Lord Penrose

 

 

 

 

 

 

[2008] CSIH 19

A1700/03

 

OPINION OF LORD REED

 

in the cause

 

ANNE MITCHELL AND ANOTHER

Pursuers;

 

against

 

GLASGOW CITY COUNCIL

Defenders:

 

_______

 

 

Act: McEachran Q.C., Miss Stirling; Drummond Miller W.S. (Pursuers and Reclaimers)

Alt: A. Smith Q.C., R.W. Dunlop; Legal Services Department, City of Edinburgh Council (Defenders and Respondents)

 

29 February 2008

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 10 August 2001 as a consequence of an assault by his neighbour, James Drummond, which occurred on 31 July 2001. Drummond was subsequently convicted of culpable homicide and sentenced to eight years' imprisonment, reduced (we were informed) to five years on appeal. Mr Mitchell was 72 years of age at the time of his death; Drummond was then in his mid 60s. Both men were the tenants of properties in Bellahouston Drive, Glasgow which were let to them by the defenders under housing legislation. Both tenancies were "secure tenancies" within the meaning of the Housing (Scotland) Act 1987 ("the 1987 Act"). Drummond had been the tenant of his house since 1985, and Mr Mitchell since 1986. Trouble between them appears to have begun in December 1994, when Mr Mitchell banged on the party wall to complain about Drummond's playing loud music. Drummond responded by battering Mr Mitchell's front door with an iron bar and breaking his windows. The police attended and arrested Drummond, who then threatened to kill Mr Mitchell when he got out of jail. I note that that incident, which appears to have been the most serious incident prior to the fatal assault seven years later, involved damage to property and threats. Following that incident, there were further incidents of abuse and threats, including threats to kill Mr Mitchell, and the police attended regularly: there are said to have been at least 40 incidents involving the police over the course of the seven year period. In January 2001 Drummond was arrested by the police and charged with breach of the peace as a result of such an incident. After February 2001 the problems between the two men escalated. A further incident occurred on 12 June 2001. On 10 July 2001 the police were called to another incident, and Drummond was again arrested and charged with breach of the peace. I note that it is not suggested that Drummond was ever convicted of any offence, or indeed prosecuted, prior to the fatal assault. Nor is it suggested that there was any incident involving personal violence prior to that assault.

[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 Bellahouston Drive feared retaliation from Drummond if they gave evidence against him, and that the incidents were adversely affecting Mr Mitchell and his family. Later in August 1999 a resident of Bellahouston Drive provided the defenders with a statement to the effect that she had heard Drummond threatening to kill Mr Mitchell on many occasions, that the police had removed Drummond in handcuffs on many occasions, that Drummond intimidated elderly residents, and that there was a risk of injury to Mr Mitchell and his wife (the first pursuer). She asked the defenders to "take action". Mr Mitchell himself reported a number of incidents to the defenders, in particular six incidents between June and September 1999, two in March and July 2000, and the incident on 12 June 2001. Two of these incidents, in August 1999 and March 2000, involved threats by Drummond to kill Mr Mitchell. One incident, in September 1999, involved threats to Mr Mitchell if the defenders evicted Drummond. The defenders were aware of the escalation in the problems during 2001. It is averred that on about 12 June 2001 Mr Mitchell "expressed his concern to the defenders that they did not seem to be acting on his complaints". On 11 July 2001 Mr Mitchell informed the defenders of the incident which had taken place the previous day. The defenders also received a police report concerning that incident. Finally, in relation to the defenders' knowledge, it is said in general terms that they knew that the health of Mr Mitchell and his family was being adversely affected by Drummond's continued residence next door.

[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 10 July 2001, the defenders wrote to Drummond on 26 July 2001, inviting him and his wife to a meeting to discuss the incident and the earlier notice of proceedings for recovery of possession. At that time the defenders were considering issuing a follow-up notice to the notice of proceedings, given the continuing problems. The meeting took place at 2.00pm on 31 July 2001. At the meeting, Drummond was told that a fresh notice of proceedings for recovery of possession would be served on him, and that the defenders would continue to monitor any complaints made about his behaviour. He was told that his continuing antisocial behaviour towards Mitchell could result in his eviction. Drummond lost his temper at the meeting and became abusive. He apologised to the defenders for having lost his temper. He returned to Bellahouston Drive, and at about 3.00pm carried out the assault from which Mr Mitchell subsequently died.

 

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 England and Wales (the Housing Act 1985) in O'Rourke v Camden London Borough Council [1998] AC 188 at page 193:

"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 31st July 2001."

 

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 31st July 2001 and of James Drummond's state of mind during that meeting." In that regard, it is averred that the defenders could have telephoned Mr Mitchell or gone to his house.

 

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 31st July 2001. By failing to advise him that a meeting was to take place and of the events at the meeting on 31st July 2001 the defenders acted in a way which was incompatible with his right of life."

 

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."

 

Lord Bridge made it clear however that the concepts of proximity and fairness could not be defined precisely so as to be used as practical tests: they amount, he said,

"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, Lord Bridge continued (at page 618):

"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."'"

 

[84] A generalised approach to liability for negligence had in particular encouraged claims alleging that the defender had negligently failed to control, or warn the pursuer about, the party whose conduct was the immediate cause of the pursuer's loss. Many such claims (including Caparo itself) involved purely economic loss; others (including Anns and Smith v Littlewoods) involved damage to property; and others again involved personal injury. Examples are discussed below. The defenders were invariably either insured persons or public authorities. Notwithstanding Caparo, such claims have continued. Since joint and several liability enables the pursuer to recover the entire amount of his loss from any party who was to any extent responsible, there is an inevitable tendency to direct claims towards the potential defenders with the deepest pockets.

[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 Scotland does not draw a distinction between acts and omissions comparable to that which appears to exist in the English law of tort". Although not determinative of the question whether a duty of care exists, the distinction is relevant to that question under Scots law, as it is under English law (indeed, the analysis of proximity in Burnett itself, based upon an assumption of responsibility by the defenders to take care for the safety of the pursuer's property, appears to me to be consistent in approach with the English authorities discussed in that case).

[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."

 

[89] A different criticism is that the law's reluctance to impose affirmative duties to protect others has the consequence, illustrated by Lord Keith's example of the person who watches a stranger walk over a cliff, of sanctioning wilful indifference to the safety of others. The law's caution in imposing affirmative duties to protect others reflects however moral and political values embedded in the law and society. One consideration is that it is usually considered worse to do harm than to fail to help: see, for example, the discussion in Honoré, Responsibility and Fault (1999), Chapter 3, "Are Omissions less Culpable?" In addition, the law's general reluctance to impose affirmative duties reflects an aspect of individual liberty: the right (in general) to do as one chooses, provided one does not harm other people. Mill observed in the first chapter of On Liberty:

"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

[90] The law's general reluctance to impose liability for omissions is strengthened by another consideration in respect of injury (particularly deliberate injury) caused by third parties. A human being is not a bottle of ginger beer: a human being of full age and capacity has free will and moral responsibility. Deliberate criminal wrongdoing is the result of a choice. Specific instances of such conduct, especially crimes of violence, are characteristically irrational and unpredictable, and therefore difficult to deter, or prevent, or guard against. They are liable to occur at almost any time and in almost any place. Such conduct occurs despite the considerable efforts made by our society to deter and prevent it, through the work of the police, the prosecution service, the courts, the prison service and other agencies. The person injured by such conduct is entitled to compensation from the wrongdoer; and, since the wrongdoer may be unidentifiable, or may be unable to satisfy an award of damages, our society has also made provision for the victim of a crime of violence to receive an award out of public funds distributed by the Criminal Injuries Compensation Authority. Since the person who inflicts deliberate harm is ordinarily responsible for his own actions, it is not ordinarily appropriate to hold another person legally accountable for the consequences of those same 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."

 

[92] In Smith v Littlewoods, Lord Goff cited the same dictum of Lord Sumner in Weld-Blundell v Stephens, and observed (at page 77):

"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 (Australia) Ltd v State Rail Authority of New South Wales (1998) 43 N.S.W.L.R. 338,

"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."

 

[97] The list of examples given by Lord Goff in Smith v Littlewoods was not intended to be exhaustive, and I do not doubt that the list is capable of extension. At the risk of making rather a sweeping generalisation, however, it can I think be seen that all the examples of primary (as opposed to vicarious) liability involve situations where it is readily understandable that the law should regard the defender as being under a responsibility to take care to protect the pursuer from the risk of deliberate injury by a third party. The responsibility does not arise merely from the foreseeability of such injury. Leaving aside responsibilities arising from the occupation of land, the situations listed by Lord Goff in which primary liability has been imposed upon a party for the consequences of a third party's deliberate wrongdoing involved the undertaking by the defender of an activity which created a foreseeable risk of injury by a third party whom the defender had a responsibility to control (as in Dorset Yacht), or the negligent creation by the defender of a source of danger with which third parties might foreseeably interfere, and which the defender therefore had a responsibility to protect from such interference (as in Haynes v Harwood), or reliance by the pursuer on an express or implied undertaking by the defender to protect the pursuer from the risk of injury by a third party (as in Stansbie v Troman). The imposition of liability in those situations is consistent with the general treatment of acts and omissions as explained by Lord Hoffmann in Stovin v Wise at page 944. A duty of care is "owed by a person who undertakes a positive activity which carries the risk of causing damage to others"; and, in addition,

"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."

 

[98] In his dissenting judgment in Modbury Triangle Shopping Centre Pty Ltd v Anzil, Kirby J was critical of the use of expressions such as "special circumstances" and "special relationship" to describe situations in which a duty exists to protect against the risk of deliberate wrongdoing by a third party, observing (at para.71):

"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 Kent [1941] AC 74 at page 102:

"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.

[102] These matters were considered again by the House of Lords in Gorringe v Calderdale Metropolitan Borough Council. In his speech, with which Lord Scott of Foscote, Lord Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood expressed agreement, Lord Hoffmann again distinguished (at para.38)

"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".

 

 

Other relevant authorities
[104] Reference was made in the course of the argument in the present case to a number of other English authorities concerned with the imposition of a duty of care in respect of deliberate wrongdoing by third parties. The case of Smith v Scott [1973] Ch. 314 bears some similarity to the present case, in that it concerned the question whether a local authority were responsible for the behaviour of their tenants. The defendant corporation had housed a homeless family, as their tenants, next door to the plaintiff. The corporation had known that the family were likely to cause a nuisance; and so it proved. The plaintiff brought proceedings based on both nuisance and negligence. Sir John Pennycuick V-C found (at page 319) that the conduct of the family was "altogether intolerable both in respect of physical damage and of noise", and that the corporation, "notwithstanding protests on the part of the plaintiff, have taken no effective steps to control the [family], nor have they taken any step to evict them". The Vice-Chancellor however decided that the corporation were not liable in nuisance, since they had neither expressly nor impliedly authorised their tenants' behaviour. In relation to the case in negligence, the plaintiff alleged a breach of a duty of care, citing Dorset Yacht. Counsel for the corporation however sought to distinguish that case on the basis that the family were not under the control of the corporation. The Vice-Chancellor accepted that no duty of care was owed, observing (at page 322):

"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).

[105] The case of O'Leary v Islington London Borough Council (1983) 9 H.L.R. 83 was of a similar nature. The plaintiffs were tenants of the defendants, and were adversely affected by the behaviour of a neighbouring tenant. They argued that the defendants' ability to enforce a term in the neighbour's lease prohibiting such behaviour, and their statutory powers to manage the houses which they let, gave rise to a duty of care towards themselves. The argument was rejected by the Court of Appeal. Ackner LJ considered the case to be indistinguishable from Smith v Scott, and observed (at pages 85-86) that the appropriate remedy lay against the neighbour herself:

"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.

[110] The case of Mowan v Wandsworth London Borough Council [2001] L.G.R. 228 was of a similar nature to Smith v Scott, O'Leary v Islington London Borough Council and Hussain v Lancaster City Council. The claimant brought proceedings based on nuisance and negligence, complaining about the behaviour of her neighbour, who was a secure tenant of the council. The liability of the council was said to arise from their failure to instigate possession proceedings, or to take any other effective steps to deal with the problem neighbour, despite having received numerous complaints over many years. The Court of Appeal held that the claim should be struck out. It was observed that a remedy lay against the neighbour, and that judicial review provided an appropriate forum for considering the legality of the council's decision not to pursue possession proceedings. In that regard, Peter Gibson LJ observed (at para.40) that the council might well have taken into account not only property management considerations as landlord, but also social services considerations.

[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 United States authorities discussed in Modbury Triangle adopted an approach based on foreseeability, but were concerned with the responsibilities of an employer for the safety of his employees, or the responsibilities of an occupier of premises towards persons invited on to the premises. Those are situations in which the undoubted duty of care might arguably extend in some circumstances, under our law also, to protection from foreseeable criminal acts by third parties: an employer's liability towards an employee has on occasion been held to extend to the consequences of deliberate wrongdoing by other persons (e.g. Hudson v Ridge Manufacturing Co Ltd [1957] 2 Q.B. 348; Collins v First Quench Retailing Ltd 2003 S.L.T. 1220); and, as I have mentioned, the liability of an occupier towards a visitor was included by Lord Goff among his examples of "special circumstances". It is however unnecessary to consider those questions for present purposes.

 

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 31 July 2001, a duty to advise Mr Mitchell that a meeting had been arranged for that date, and a duty to alert the police. Why did the defenders owe an obligation to Mr Mitchell to inform him and the police about their forthcoming meeting with their tenant, bearing in mind that the foreseeability of harm, even if it existed, would not be sufficient in itself to create such an obligation?

[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 31 July 2001 and of Drummond's state of mind during the meeting. It is implicit that the duty was to warn Mr Mitchell at once, before he was assaulted by Drummond, only an hour after the meeting began. The duty is said to have arisen in consequence of the defenders' knowledge that Drummond had a history of making threats against Mr Mitchell, and their knowledge that he had threatened to harm Mr Mitchell if faced with the prospect of eviction. Drummond had a history of making threats, but not of carrying them out: although he is said to have uttered threats on many occasions, he had never in the past used personal violence against Mr Mitchell, and the only incident involving any form of violence (when the door was damaged and windows broken) had occurred as long ago as 1994. The threat which had concerned the possibility of eviction had been made in 1999, and had not been fulfilled when the notice was served in January 2001. These matters however concern the question of foreseeability; and, as Lord Goff stated in Smith v Littlewoods at page 77,

"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 United Kingdom, judgment of 10 May 2001, Reports 2001-V, p.1, the European Court acknowledged that its earlier decision had been based on a misunderstanding of English law. It accepted that, as a matter of domestic law, the "fair, just and reasonable" criterion was an intrinsic element of the duty of care which had to be satisfied before the tort of negligence would be established. It acknowledged that the striking-out procedure permitted the applicants to put their legal arguments before the court and could not therefore be said to amount to a denial of access. It accepted that a trial on the facts would serve no useful purpose once it had been found that the applicants had no legal claim.

[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, Dorset Yacht, Anns and Caparo. As Jacobs LJ commented (at para.45),

"One cannot imagine what our current law of negligence would look like without these cases, all decided without a trial."

 

[135] In the present case, in accordance with Scottish procedure, both parties' pleadings are in a finalised state. They have each had an opportunity to recover any documents which they might require for the purpose of making relevant and specific averments. My conclusion that no duty of care of the kind averred was owed to Mr Mitchell is not based on the "fair, just and reasonable" criterion, but on factors which, in the terms of the tripartite test in Caparo, would fall under the rubric of "proximity". That conclusion has been reached by legal analysis, on the assumption that the pursuers' averments of fact are true. Counsel for the pursuers sought to make something of the fact that more would be known about the relevant events if evidence were to be heard in support of those averments and the facts were established. This appears to me to be a point without substance, since the court assumes that the pursuers' averments of fact are true. My conclusion is not dependent on nuances and details in the evidence which might be led on the basis of those averments: it would be altered only by evidence which went beyond the scope of the averments. If my conclusion is correct, there is no reason why effect should not now be given to it by sustaining the defenders' plea to the relevancy of those averments. The alternative, in such a situation, is to present the local authority with a choice between incurring expenditure of time and resources on a proof, or incurring expenditure of money in settling with the pursuers. I have already cited the comments made in O'Leary v Islington London Borough Council (per Ackner LJ at page 83) and Hussain v Lancaster City Council (per Hirst LJ at pages 27-28) as to the undesirability of wasting resources on hopeless cases. Similar observations were made by Lord Hoffmann in Gorringe (at paras.33and 74-75). To those might be added a passage from the speech of Lord Reid in Jamieson v Jamieson 1952 S.C. (H.L.) 44 at page 63:

"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 European Court and domestically. Since the present case is concerned with circumstances of a kind which do not appear to have been considered in previous cases, it is necessary to look in the European case law for the relevant principles.

[137] In Osman v United Kingdom the Court stated (at para.115):

"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 United Kingdom, judgment of 14 March 2002, Reports 2002-II, p.137, for example, the Court considered a complaint that prison authorities had failed to protect a prisoner from being killed by his cell-mate. After reiterating what had been said in the Osman judgment, the Court continued (at para.56):

"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 17 January 2002, Reports 2002-I, p.1, for example, the Grand Chamber referred to the general obligation of the State to take appropriate steps to safeguard the lives of those within its jurisdiction, and continued (at para.49):

"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 European Court. As Lord Bingham of Cornhill said, in a speech with which the other members of the House expressed agreement, in R (Ullah) v Special Adjudicator [2004] 2 AC 323 at para.20:

""the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court. ... It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less."

 

[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 31 July 2002, the defenders knew or ought to have known that there was a real and immediate risk to Mr Mitchell's life. Knowledge (actual or imputed) of such a risk cannot be inferred from the averments concerning Drummond's behaviour at the meeting or his previous behaviour. The pursuers' averments of breach of statutory duty by the defenders are therefore irrelevant.

[145] It remains to consider the pursuers' argument that Article 2, read with section 6 of the Human Rights Act 1998, imposes on the court an obligation to allow the pursuers' case to proceed to proof regardless of the relevancy of their averments, so that an inquiry can take place at which compensation may be awarded. If Article 2 is inapplicable to the pursuers' complaint (as to which I need express no concluded view), then plainly Article 2 imposes no obligation on the State to inquire into that complaint. Even assuming, however, that an obligation would arise under Article 2 if, as the pursuers maintain, the defenders knew or ought to have known that there was a real and immediate risk to Mr Mitchell's life at the hands of Drummond, a complaint which does not disclose an arguable case that the defenders knew or ought to have known of such a risk or an arguable case that the defenders breached any other obligation under domestic law cannot in my opinion give rise to an obligation on the State, under Article 2, to inquire into that complaint. Furthermore, even if one were to assume that Article 2 in principle imposed an obligation on the State to inquire into Mr Mitchell's death, notwithstanding the absence of an arguable case that the defenders had acted incompatibly with Article 2 or otherwise in breach of domestic law, it would not follow that that inquiry should take the form of a proof of averments which, ex hypothesi, did not disclose an arguable case. A proof in civil proceedings is not a form of public inquiry: its purpose is to determine whether the pursuer has established a cause of action against the defender and, if so, the appropriate remedy. If it is apparent to the court that the pleadings do not disclose a cause of action, even on the assumption that all the pursuer's allegations of fact are true, the holding of a proof in order to determine whether those allegations are true or false would manifestly be a waste of time and resources, as the European Court recognised in Z v United Kingdom (at paras.97 and 101).

[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 Scotland made available an appropriate procedure in the form of a fatal accident inquiry. Such an inquiry would not in itself result in a finding of civil liability or in the payment of compensation, but it would ensure an effective investigation of the facts, and would thus enable any relevant failures to be identified and publicised. Counsel for the pursuers were unable to inform the court whether the pursuers had requested that a fatal accident inquiry be held (it being customary for the views of the relatives of the deceased to be sought on behalf of the Lord Advocate). If the Lord Advocate failed to hold a fatal accident inquiry in a case in which Article 2 required the holding of such an inquiry, that failure could be challenged by means of an application for judicial review (Fayed v Lord Advocate 2004 S.C. 568; Emms, Petitioner 2008 S.L.T.2; Kennedy v Lord Advocate [2008] CSOH 21).

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.

[147] Considered as a whole, the legal system in my opinion met the requirements of Article 2 in relation to Mr Mitchell.

 

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 Paton

Lord Reed

Lord Penrose

 

 

 

 

 

[2008] CSIH 19

A1700/03

 

OPINION OF LORD PENROSE

 

in

 

RECLAIMING MOTION

 

in the cause

 

ANNE MITCHELL and KARIN MITCHELL (Assisted Persons)

Pursuers and Reclaimers;

 

against

 

GLASGOW CITY COUNCIL

Defenders and Respondents:

 

_______

 

 

 

Act: McEachran Q.C., Miss Stirling; Drummond Miller W.S. (Pursuers and Reclaimers)

Alt: A. Smith Q.C., R.W. Dunlop; Legal Services Department, City of Edinburgh Council (Defenders and Respondents)

 

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 United Kingdom (1998) 29 EHRR 245 at para. 115. The Court stated:

"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 Italy, Reports 2002-VIII, at para. 68, the Court observed:

"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 31 July 2001, a lower level of duty than that envisaged by the authorities. At most what is pled is an obligation to intimate to a potential victim the existence of a risk against which he, or others on his behalf, should take preventative measures.

[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 Scotland, a fatal accident inquiry may be available to examine issues broadly, with a view to allocating responsibility and making proposals for future conduct. A criminal prosecution may be available to determine the criminal responsibility and impose punishment where the state alleges that offences have been committed. Civil proceedings may be available to determine whether there have been breaches of civil obligations and to determine the financial consequences in appropriate cases. In cumulo the procedures available must be designed, as Lord Reed has said, to be independent, to be effective, to be reasonably prompt, to allow of public scrutiny, and to allow affected persons to be involved to an appropriate extent. But each element in the structure may be fenced about by jurisdictional and other conditions that may properly exclude enquiry in a particular case.

[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.

 

 


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