Mitchell (AP) and another (Original Respondents and Cross-appellants) v Glasgow City Council (Original Appellant and Cross-respondents) (Scotland)

Foreseeability of harm, even serious physical harm, does not alone impose a duty to protect another from a third party’s deliberate crime. A duty to warn of such a risk normally arises only where the defendant has, by words or conduct, assumed responsibility for the threatened person’s safety.

The threefold inquiry of foreseeability, proximity and whether liability would be fair, just and reasonable forms part of Scots negligence law. It determines both the existence and scope of a duty. An ordinary landlord does not assume responsibility merely by addressing a tenant’s anti-social behaviour or considering possession proceedings.

The positive operational obligation under article 2 of the European Convention on Human Rights requires knowledge, actual or constructive, of a real and immediate risk to an identified person’s life. That threshold is constant and must be assessed without hindsight.

The deceased and his violent neighbour were tenants of Glasgow City Council. Shortly after council officials warned the neighbour that further anti-social behaviour might lead to eviction, he fatally assaulted the deceased. The deceased’s widow and daughter alleged that the council should have warned him about the meeting and the risk of retaliation.

The Lord Ordinary dismissed their common-law negligence claim and their claim under article 2 of the European Convention on Human Rights: 2005 SLT 1100. The Extra Division, reported at [2008] CSIH 19 and 2008 SC 351, allowed a proof before answer on negligence by a majority, but excluded the human-rights case by a different majority.

The council appealed against the reinstatement of the negligence claim. The pursuers cross-appealed on article 2. The central questions were whether the landlord owed a duty to warn of violence by its tenant and whether the pleadings disclosed a known or reasonably knowable real and immediate risk to life.

1. Disposition. Lord Hope delivered the leading speech. The House unanimously allowed the council’s appeal, dismissed the pursuers’ cross-appeal, recalled the Extra Division’s interlocutor and restored the Lord Ordinary’s dismissal of the action.

2. Common-law duty. Per Lord Hope, foreseeability was necessary but insufficient to impose liability for an omission to protect someone from a third party’s deliberate crime. The approach of Lord Goff in Smith v Littlewoods Organisation Ltd [1987] AC 241 was preferred and applied. A duty to warn of such a danger ordinarily arises only where the defendant has assumed responsibility, by words or conduct, for the threatened person’s safety. Lord Scott, Lord Rodger, Baroness Hale and Lord Brown agreed that no such responsibility had been assumed.

3. Fairness and scope. Per Lord Hope, the threefold test in Caparo Industries plc v Dickman [1990] 2 AC 605 forms part of Scots law and applies to personal injury as well as economic loss. It governs the scope of an existing relationship as well as the initial existence of a duty. Although landlord and tenant were proximate and violence might have been foreseeable, imposing the proposed warning duty was not fair, just or reasonable. It could deter social landlords from taking legitimate action against anti-social behaviour, produce routine and alarming warnings, compromise confidentiality and divert resources from their primary functions.

4. Lord Rodger emphasised that the council was lawfully taking preliminary steps under section 47 of the Housing (Scotland) Act 1987. A statutory power to seek possession did not create a common-law duty to exercise it or to warn neighbours before doing so. Lord Rodger and Baroness Hale considered that the council’s conduct meant the case was not wholly one of pure omission. They nevertheless agreed that no narrower principle justified liability. The council neither created the relevant danger in the legally material sense nor controlled the assailant.

5. Article 2. Per Lord Hope, the operational obligation required actual or constructive knowledge of a real and immediate risk to the life of an identified individual, coupled with a failure to take reasonable measures within the authority’s powers. The standard derived from Osman v United Kingdom (2000) 29 EHRR 245 was high, constant and not variable according to whether an authority had contributed to the situation. Assessed without hindsight, the pleaded history and the neighbour’s conduct at the meeting did not suggest an immediate risk to life. Lord Rodger, with Lord Brown agreeing, additionally considered that an ordinary landlord had not assumed the protective responsibility which could generate an article 2 operational duty.

6. Procedure. The claims were properly dismissed as irrelevant without proof. Assuming every averment to be true, the defects concerned the legal scope of the alleged duties and could not be cured by evidence.

• House of Lords: In [2009] UKHL 11, unanimously allowed the council’s appeal, dismissed the pursuers’ cross-appeal, recalled the Extra Division’s interlocutor and restored the Lord Ordinary’s dismissal of the action.
• Extra Division of the Court of Session: In [2008] CSIH 19, reported at 2008 SC 351, a majority recalled the Lord Ordinary’s interlocutor and allowed a proof before answer on the common-law case. A differently constituted majority excluded the article 2 averments from probation.
• Lord Ordinary: Dismissed the action in a decision reported at 2005 SLT 1100.