Case Analysis: Mitchell V Glasgow City Council

The claimant of this case was the widow and daughter of Mr Drummond. They brought a claim against the council for damages in negligence, the essential legal complaint was that the local authority had failed to warn the deceased about the meeting before, and that they acted in a way that was incompatible with his right to life, under Article 2 of the European Convention on Human Rights. The Court of Session (Scotland’s equivalent to the High Court) at first dismissed the case in 2005, but in 2008 the court allowed the hearing of the case, also known as “proof before hearing”.

Unanimously the Lords allowed the local authority’s appeal and dismissed the cross-appeal. The bench included Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Rodger of Earlsferry, Baroness Hale of Richmand, Lord Brown of Eaton under Heywood and Lord Scott of Foscote. All five judges’ judgements were different from each other, with no disagreements.

The House of Lords in this case ruled that the duty of care owed by landlords to their tenants does not include a duty to warn or otherwise protect against wrongful acts by other tenants.

The House of Lords were concerned with the implication of landlords and of others in such circumstances, reviewing and applying the three stage test the judges unanimously found that the council had no duty. The case Caparo industries v Dickman established the three part test, set out by Lord Bridge, to be used to decide whether a duty of care exists in situations where there is no precedent.

It must be demonstrated that: it was reasonably foreseeable that a person in the claimant’s position would be injured, there was sufficient proximity between the parties and it is fair, just and reasonable to impose liability on the defendant. Foreseeability of harm is not itself enough for the imposition of a duty of care it appears. Even though foreseeability and proximity may exist, the duty of care will not be on the defendant unless it is fair, just and reasonable. This can be seen in the case of Dorset Yacht Co ltd v Home Office. Also Lord Goff of Chieveley explained in Smith v Littlewoods organisation ltd, that law does not normally impose positive duty on a person to protect others. In addition the law does not impose a duty to prevent a person from being harmed by criminal act of third party based upon foreseeability. According to this statement by Lord Goff the failure to act by the council does not impose liability on the council for the criminal act of the third party.

The Council had accepted that they had responsibility for the situation that arouse, the only question was whether harm, in the circumstances of the case, to the deceased was reasonably foreseeable as a result of the actions which they were taking. Lord Goff addressed that “there is at present no general duty at common law to prevent persons from harming others by their deliberate wrongdoing, however foreseeable such harm may be if the defendant does not take steps to prevent it” in the case of Smith v Littlewoods Organisation Ltd. This implies that even if the act of the third party was so foreseeable the council does not need to prevent the situation from occurring. In the case of Gorringe v Calderdale Metropolitan Borough Council it was stated that “reasonable foreseeability was insufficient to justify the imposition of liability upon someone who simply does nothing”, Lord Reed agreed to this. In Stovin v Wise, Lord Hoffman addressed that, “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 or natural causes”. Nevertheless, In the case of Mitchell there is evidently a relationship and closeness between the two parties, the council and the tenant. In the case of Sutradhar v Natural Environment research Council, Lord Brennan said that a key factor in deciding when there was proximity was whether the defendant has “a measure of control over and responsibility for the potentially dangerous situation”. In the case of Mitchell, as the local authority it is obvious that the council do have responsibility for their tenants, but the extent to which this duty reaches the remit of the authority its seems is only when there is a close organisational association for which it an association for blame can be made. The act third parties in particular criminal acts falls out of this remit. Evidently, In Mr Mitchells case there was sufficient proximity to give rise to a duty of care, and that there was some scope for the claimants.

In the case of Attorney General of the British Virgin Islands v Hartwell a police authority was held to owe a duty of care to the public at large, not to assign a gun to a probationer officer whose family circumstances might make him unpredictable and unstable. So the authority was liable to someone whom the officer shot in the course of an incident when he was intent on using the gun to harm his former partner and her boyfriend. In the current case Lord Rodger of Earlsferry approved, the meeting is a significant factor. The Council having that meeting with Mr Drummond was not merely guilty of omission, but that there was no doubt that what the Council officials told Mr Drummond led on to his assault on Mr Mitchell. Lord Hope concluded that “I would also hold, as a general rule, that a duty to warn another person that he is at risk of loss, injury or damage as the result of the criminal act of a third part will arise only where the person who is said to be under that duty has by his words or conduct assumed responsibility for the safety of the person who is at risk”.

Lord Scott of Foscote also conclude by stating that “ the relationship between the local authority and its tenants, Mr Mitchell and Mr Drummond, nor the actions of local on 2 July in giving Drummond a final warning about his conduct, can suffice, in my opinion, to cast upon the local authority the delictual duty contended for. The attempt to found an action upon the local authority’s failure to warn is, in my opinion, an attempt to found an action upon mere omission”, as well as reasons given by Lord Hope. Even though the principle of proximity and foreseeability, which were established from Donoghue v Stevenson are met, it would have to be fair just and reasonable, third test in Caparo v Dickman . What is fair just and reasonable will depend on factors such as public policy. Procedural fairness it seems dictates that allowing a duty in certain situations is against the public interest because of the wider impact it has.

As in the case of police, It is desirable too that landlords, social workers and others who seek to address the many behavioural problems that arise in local authority housing estates and elsewhere, often in very difficult circumstances should be safeguarded from legal proceedings arising from an alleged failure to warn those who might be at criminal attack on response to their actions. Public policy was paramount concern in Hill v Chief Constable of West Yorkshire . Lord Hope stated that “I would take the same approach to this case. The situation would have been different if there had been a basis for saying that the defenders had assumed responsibility to advice the deceased of the steps that they were taking, or in some other way assumed responsibility to advice the steps that they were taking, or in some other way had induced the deceased to rely them to do so”. The law is there to draw a line to where a duty exists and does not, if there was a wide opportunity to allow claims by tenants against landlords for the failure to warn them of any criminal activity by a third party, such a duty would hinder the operation of local authority. In Osman v Ferguson, the appeal was allowed, the Court was satisfied that it was reasonably foreseeable that harm would result and that there was a sufficient closeness of proximity.

The case of Hill v Chief Constable of West Yorkshire had laid down, as a matter of public policy, blanket immunity on the police from such actions. A similar decision and approach had been taken In the Mitchells case, where foreseeability and proximity existed, but imposing such a duty on the local authority would be against a matter of policy issues. Naturally, such decisions curbing claims on government bodies limits the types of claims which can be brought. The ability to exercise local authority and agency powers would be restricted, they would need to act constantly with caution hoping that their actions does not lead to liability for potential claims. Opening the ‘floodgates’ to claims would be a burden on the authorities resources and time, by placing restrictions on claims, via the concept of duty if care, the courts make it clear for individuals and organisations to know what they can and cannot do.

Finally,In respect of the claim under Art.2 the pursuers declared that the defenders “knew or ought to have known that there was a real and immediate risk” to the deceased’s life on 31 July 2001.at the meeting held, Mr Drummond did not say or do anything to alert the local authority to a risk that he would attack Mr Mitchell when he got home, let alone that he would inflict injuries from which Mr Mitchell might die. The appeal was allowed, cross-appeal dismissed. Both Lords Reed and Hope confirmed that this is a high test. But that there was no support of evidence that could establish the defenders were aware of such a risk.

In conclusion the decision in the current case and many similar claims are not only considered on points of law but clearly the rational impact on the defendants at large, as it would be absurd and a counterproductive result if where good landlords, who try to sort out disputes between neighbours, find themselves having liability imposed on them because they thereby assumed responsibility for the safety of the parties, whereas bad landlords who do not act will escape liability. If in this case there was a duty to warn, there would be in every case where a landlord suspects that his tenants may react to the steps to address his anti-social behaviour by attacking the person or property of anyone he suspects of informing against him. If landlords where under such a duty then this would also extend onto social workers as well,”…any other conclusion would have significant implications for councils and housing associations and similar organisations, with duties to provide houses for people who may well not be desirable tenants”.