Duty within bounds

To quote Baroness Hale of Richmond in the House of Lords, “This is but the latest in a long line of cases from Scotland which have played such an important part in shaping the law of negligence for the whole of the United Kingdom.”

Over 10 years ago at Glasgow Sheriff Court I conducted a debate on behalf of the defenders, Glasgow City Council in an entirely separate and unrelated case to that of Mitchell. The circumstances were that after social workers explained to a teenage boy that he was being taken into the local authority’s care in terms of s 15 of the Social Work (Scotland) Act 1968, the boy ran away and out into the street where he proceeded to damage a vehicle. The owner of the car raised an action of damages against the council. My argument at debate was unsuccessful and the sheriff allowed a proof before answer.

Had the sheriff had the benefit of the unanimous House of Lords’ decision in Mitchell, given on 18 February 2009, I am of the strong view that the case involving the social workers would have been dismissed. For any law student or solicitor who has a reparation workload (not just those employed in-house), the opinions of the learned judges of the Outer House (2005 SLT 1100) and Inner House (2008 SLT 368) and in the House of Lords (2009 SLT 247) are essential reading. Although the issue of law for determination by the House of Lords could be stated in simple terms: under what circumstances can there be liability for the criminal acts of a third party?, there is a richness in the legal analysis contained within the judgments at all three levels which will no doubt be referred to and considered in future cases.

The pursuers’ case

The pursuers’ relative, James Dow Mitchell, was killed by his neighbour James Drummond on 31 July 2001. Both the deceased and Drummond were tenants of the defenders’ predecessors from the mid-1980s and held secure tenancies in terms of the Housing (Scotland) Act 1987. Following a meeting between Drummond and the defenders’ housing officer at 2pm on 31 July 2001, at which Drummond 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 complaints about his antisocial behaviour towards the deceased, Drummond carried out an assault from which the deceased subsequently died.

Drummond was arrested and charged with murder; the Crown later accepted his plea to culpable homicide. He was sentenced to eight years’ imprisonment, reduced to five years on appeal. The pursuers, the deceased’s widow and daughter, claimed damages from the council for the loss, injury and damage which they suffered as a result of his death.

Their case was based on two grounds: negligence at common law; and that the defenders acted in a way that was incompatible with the deceased’s right to life under article 2 of the European Convention on Human Rights. The Lord Ordinary, Lord Bracadale, dismissed the action in its entirety. An Extra Division (Lady Paton and Lord Penrose, Lord Reed dissenting) recalled the Lord Ordinary’s interlocutor and allowed a proof before answer on the pursuers’ case at common law. By a different majority (Lady Paton dissenting) it excluded from probation their averments in relation to the Convention. The unanimous decision of the House of the Lords once again dismissed the case in its entirety.

Decision without inquiry?

At all stages the defenders sought dismissal on the ground that the pursuers’ pleadings were irrelevant, notwithstanding the well known dicta in Jamieson v Jamieson 1952 SC (HL) 44 that an action will not be dismissed as irrelevant unless, even if the pursuer proves all his averments, it must necessarily fail, and in Miller v South of Scotland Electricity Board 1958 SC (HL) 20 that it is only in rare and exceptional cases that in claims for damages an action should be disposed of on relevancy.

As was noted by Lord Reed in the Extra Division at para 82: “In 1987 Lord Goff of Chieveley remarked 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)’”. In his leading judgment in the House of Lords, Lord Hope of Craighead (at para 12) stated that “questions about the existence or scope of a duty of care are questions of law”.

Although there are cases where the existence or scope of a duty of care cannot safely be determined without hearing the evidence, where, as in Mitchell, the issues on which the case depends are of principle or legal analysis, “it would be unfair for the defenders to be required to spend time and money on what will obviously be a fruitless inquiry”. A thorough consideration of the opinions given throughout the proceedings in Mitchell can only confirm Lord Hope’s observation that the comments in Jamieson “on the value of the procedure for disposing of cases on relevancy without inquiry into the facts remain just as true today as they were when they were made nearly 60 years ago”.

Common law, common test

The pursuers’ case was that there had been an operational failure by the defenders in circumstances where it was reasonably foreseeable that harm would flow to the deceased. Senior counsel for the pursuers stressed that there was a duty on the defenders to warn the deceased, and that this duty arose because harm to the deceased was reasonably foreseeable. Had the pursuers’ case depended solely on foreseeability of harm, it would have been far more difficult to resist the common law case proceeding to proof before answer, although Lord Bracadale in the Outer House stated that he had no “concluded view on the question of foreseeability on the basis of the pleadings”.

If there was ever any doubt as to whether or not, when considering the existence or scope of a duty of care, the tripartite test of foreseeability, proximity and “fair, just and reasonable”, as referred to in Caparo Industries plc v Dickman [1990] 2 AC 605, applied both north and south of the border, their Lordships in Mitchell have confirmed its universal applicability throughout the United Kingdom. For a variety of reasons their Lordships concluded that in all the circumstances it would not be fair, just or reasonable to hold that the defenders were under a duty to warn the deceased of the steps that they were taking, and the common law case was irrelevant.

These reasons included that the law does not normally impose a positive duty on a person to protect others, or a duty to prevent a person from being harmed by the criminal act of a third party based simply on foreseeability; the unpredictability of Drummond’s reaction when steps were taken by the defenders in exercise of their statutory power to address his antisocial behaviour; and consideration of the defenders as a public authority and the public benefits of encouraging them as social landlords to intervene and address issues of antisocial behaviour.

Had the pursuers had a basis for saying the defenders specifically assumed responsibility for the safety of the deceased – not something that was averred – the situation would have been different.

Article 2: unsupported case

The pursuers alleged a contravention by the defenders of article 2 of the ECHR in that by failing to advise the deceased that the meeting of 31 July 2001 was to take place and of the events that transpired at that meeting, the defenders acted in a way incompatible with the deceased’s right to life. The pursuers averred 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. Both Lords Reed and Hope confirmed that this is a high test. But that bare averment was unsupported, in that there were no other averments to establish that the defenders were aware of such a risk. This case was dismissed at all three levels.

What if the pursuers had won?

Had senior counsel for the pursuers succeeded in “his attractive address” regarding the framework of the pursuers’ pleadings, and in his beguilingly and deceptively simple submission that there was a duty to warn on the part of the defenders, the implications would have been complex, far-reaching and have had damaging and drastic consequences.

Before the Lord Ordinary, junior counsel for the defenders stressed the multiplicity of agencies that could be affected, including the police, the probation service, housing authority and social services. To impose a duty of care such as that for which the pursuers contended, could create multiple cases of liability causing drastic diversion of resources, and would fly in the face of previous decisions of the House and the statutory powers available to the local authority. The potential for liability would not only apply where death resulted, but to “any wrong no matter how venial the harm” (see Lord Bracadale at para 14).

In the Inner House Lord Reed recognised the potential for a wide range of bodies, including employers, schools, landlords, the police, the prosecution service and the courts, being curtailed in their lawful investigations by the imposition of a duty of care to protect a complainer from the risk of retribution by the person who is the subject of the complaint. It was also recognised that public authorities discharging functions in the public interest are nevertheless subject to increasing budgetary pressures. As their Lordships identified, there are numerous budgetary, efficiency and public policy reasons why those agencies which are seeking to address the many behavioural problems that arise in society, often in very difficult circumstances, should not be burdened by a duty to warn, together with the risk that anybody who suffered loss, injury or damage if they had received no warning would have a right of action. The imposition of such a duty would have been, in my humble view, disastrous.

Towards the close of his submissions to their Lordships, senior counsel for the defenders referred to Lord Reed’s judgment at para 119. These comments deal with the wider implications of knowledge of many agencies as to the potential risk to the person or property of other residents. “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.” Had the pursuers in Mitchell been successful in establishing a duty to warn, the implications for liability would have been far-reaching and would have unnecessarily diverted public agencies from their primary functions in the public interest.

As the instructing solicitor for Glasgow City Council I am, unsurprisingly, delighted at the outcome, though commend to all a thorough consideration of the opinions throughout this case. Standing the creation of the Supreme Court of the United Kingdom with effect from 1 October 2009, it has been a privilege to be involved in the latest and perhaps the last important Scottish case before the House of Lords which has thus far shaped the law of negligence.

Lawful occasions

In the Inner House Lady Paton confirmed that “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”. In the House of Lords Lord Rodger of Earlsferry observed at para 58: “In the present case, by contrast, not only were the council officials not committing any wrong by holding the meeting with Drummond, they were taking steps towards exercising a statutory power given to the council as landlords, to be used in the interests of good order in the neighbourhood of their houses. It was these entirely lawful and legitimate steps by the council officials which provided the occasion for Drummond choosing to assault Mr Mitchell.”