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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lady Paton
Lord Reed
Lord Penrose
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[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:
_______
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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 S.L.T. 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 S.L.T. 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 W.L.R. 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 W.L.R. 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] Q.B. 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 A.C. 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 A.C. 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 S.C. (H.L.) 31; Dorset
Yacht Co Ltd v Home Office [1970] A.C. 1004; Carmarthenshire
County Council v Lewis [1955] A.C. 549;
Maloco v Littlewoods Organisation
Ltd [1987] A.C. 241; Swinney v Chief Constable of Northumbria [1997] Q.B. 464, at pages 478H to 479C, 483G to 484E, and 487B-D; and W v
Essex County Council [2001] 2 A.C. 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 A.C. 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 A.C. 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 A.C. 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 W.L.R. 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 W.L.R. 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 W.L.R. 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 S.C. (H.L.) 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 A.C. 653, R (Takoushis) v Inner North London Coroner [2006] 1 W.L.R. 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 E.H.R.R. 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] A.C. 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] A.C. 923, and
Gorringe v Calderdale Metropolitan
Borough Council [2004] 1 W.L.R. 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 A.C. 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] A.C. 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 W.L.R. 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 A.C. 215; Dorset
Yacht Co Ltd v Home Office [1970] A.C. 1004; and Maloco
v Littlewoods Organisation Ltd [1987] A.C. 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] Q.B. 464; Gibson
v Orr 1999 S.C. 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] Q.B. 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 A.C. 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] Q.B. 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] Q.B. 464; Gibson v Orr 1999 S.C. 420
(citing inter alia Dorset Yacht Co v Home
Office [1970] A.C. 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 A.C. 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 S.C. (H.L.) 31; but, standing the novelty of the
circumstances in this case, the tripartite test in Caparo Industries plc v Dickman [1990] 2 A.C. 605 should in my view be applied once the
facts are established: cf. the approach
of Lord Hamilton in Gibson v Orr 1999 S.C. 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 A.C. 633, Stovin
v Wise [1996] A.C. 923, and Gorringe
v Calderdale Metropolitan Borough Council [2004] 1 W.L.R. 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 K.B. 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 E.H.R.R. 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 S.C. (H.L.) 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 W.L.R. 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 give