Torts Law Case Note - -Mitchell v Glasgow City Council- Case Note verfasst in Englisch PDF

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-Mitchell v Glasgow City Council- Case Note
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Assessment -Mitchell v Glasgow City CouncilPart (a) Case Note

Introduction Mitchell v Glasgow City Council1 placed social landlords and their scope of liability regarding to third party actions under a microscope. The judges agreed that Glasgow City Council owed a general duty of care did exist, arising out of the contractual duties as a landlord2, however the issue at trial was whether Glasgow City Council was in breach of its common law duty of care as a landlord by failing to warn its tenant of the risk of possible violent conduct of the tenant’s neighbour, given the fact that several violent incidents already occurred.3 The decision therefore approaches the scope of the duty of care in cases of omissions by examining the three- fold test, developed in Caparo Industries plc v Dickman4, with focus on its purview as well as the requirement of judgment based upon public policy.

Facts and case history: Mr. Mitchell (M) and Mr. Drummond (D) were neighbours since 1986 and both tenants of Glasgow City Council. The first incident occurred in December 1994 where D battered M´s door and smashed his windows after an argument about noise. He was arrested by the police. Further such incidents occurred followed by dead threats. M regularly consulted and informed Glasgow City Council. On the 10 July 2001 D was again arrested by the police and charged with a breach of the peace. The City Council received a video record and a police report of the incidents. On the 31 July 2001 a meeting was held between the defenders and D to discuss the incident of the 10 July 2001 and to serve him the fresh notice of proceedings for recovery of 1

Mitchell v Glasgow City Council 2009 SC (HL) 21 Mitchell v Glasgow City Council 2009 SC (HL) 21 [26] 3 This note deals only with the common law claim. In respect to the second claim, the pursuer argued that the Council had acted incompatibly with Mitchell’s right to life under article 2 of the European Convention, in contravention of the Human Rights Act 1998. This claim was unanimously dismissed by the court, based upon the fact that there was no “real and immediate risk” as required in Osman v UK (2000) 29 EHRR 245. See in Mitchell v Glasgow City Council 2009 SC (HL) 21 [32-35] 4 [1990] 2 AC 605 2

possession. During the meeting D lost his temper and became abusive. He apologised after his actions. After the meeting D returned to his home and at about 3 pm he assaulted M in such a way that he died from his injuries.5 In first instance the Court of Session dismissed the case, but in 2008 the court decided to allow the case to proceed in respect of the negligence claim but not in respect of the Human Rights Act claim. Thereupon both sides appealed against these decisions. M’s widow and daughter sought damages from Glasgow City Council based on the allegation that Glasgow City Council had broken its common law duty of care by failing to warn or advice M either before or after the meeting that he might be at risk. 6

The three- fold test with respect to the scope of the duty of care The fundamental function of the duty of care is to ascertain ‘whether or not one person falls within a legal relationship with another such that care should be taken to avoid injuring that other’.7 There was no objection to the decision that a duty of care which is resulting from the contractual duties as landlord was owed.8 However Lord Hope expresses that it is rather a question of the scope of the duty in the current case.9 Furthermore he determines the fact that the defender ´s failure of warning is a pure omission and holds up the possible liability in the case of an existing foreseeability of harm by agreeing with Lord Goff10 in Smith v Littlewoods Organisation Ltd11 saying 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 defender does not take steps to prevent it.”12

5

Mitchell v Glasgow City Council 2009 SC (HL) 21 [1-8] Mitchell v Glasgow City Council 2009 SC (HL) 21 [18], [38], [49] 7 Christian Whitting, ‘Duty of Care: An Analytical Approach’ (2005) 25 OJLS 33, 35. 8 Mitchell v Glasgow City Council 2009 SC (HL) 21 at paragraphs [26] 9 Mitchell v Glasgow City Council 2009 SC (HL) 21 at paragraphs [26] 10 Mitchell v Glasgow City Council 2009 SC (HL) 21 at paragraphs [16] 11 1987 SC (HL) 37 12 Smith v Littlewoods Organisation Ltd 1987 SC (HL) 37, at p 83 6

The case that first brought into the existence a duty of care for personal injury and property damage based on foreseeability is Donoghue v Stevenson13 stating that ‘you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’.14 The Lords agree that more than foreseeability is required by referring to Caparo Industries plc v Dickman15 and the within developed three-fold (Caparo test) test which additionally requires a relationship of proximity and a situation where the court considers it to be fair, just and reasonable that the law impose a duty of a given scope upon the one party for the benefit of the other.16 It is argued that the “Caparo test”17 should not be applicable for cases claiming damages for personal injuries because it was not part of the law of Scotland.18 According to this Lord Hale set out that “it is really no more than an expression of the idea that lies at the heart of every judgement about legal policy” and therefore he sees “no good reason why, as a general guide to what is required, it should not be regarded as part of Scots law”.19 In addition he outlines that there is no existing principle of Scots law that contradicts the test as well as the fact that “the law of liability for negligence has developed on common lines both north and south of the Border” which can be seen as a “powerful support for the defenders´ argument that it should be applied in this case.”20 The House of Lords was right to consider necessary more than just foreseeability, hence to apply the three- fold test which brings up the question whether it is fair, just and reasonable to be held liable in damages for the omission to warn based upon the relationship between Glasgow City Council (landlord) and the deceased (tenant).21

13

[1932] AC 562 Donoghue v Stevenson [1932] AC 562 [580] 15 [1990] 2 AC 605, 617-618 16 Mitchell v Glasgow City Council 2009 SLT 247 at para 15 per Lord Hope, para 39 per Lord Scott, para 56 per Lord Rodger, para 75 per Baroness Hale, para 80 per Lord Brown 17 Caparo Industries plc v Dickman [1990] 2 AC 605, 617-618 18 Perrett v Collins [1998] 2 Lloyd’s Rep 255, 263, [1999] PNLR 77; Gibson v Orr 1999 SC 420 ; Forbes v City of Dundee District Council 1997 SLT 1330 19 Mitchell v Glasgow City Council 2009 SC (HL) 21 [25] 20 Mitchell v Glasgow City Council 2009 SC (HL) 21 [25] 21 Mitchell v Glasgow City Council 2009 SC (HL) 21 [26] 14

Misfeasance of public policy? By applying the Caparo test, the court has to take certain policy factors into account to proof whether it is fair, just and reasonable to impose a duty of care. In the present case it is stated that “the implications of saying that there was a duty to warn are complex and far reaching”.22 It is expressed that there would be a duty to warn in every case where a social landlord suspecting a tenant to behave in an anti-social way. Further this would lead to the extension of this duty to private landlords and social workers.23 As a result it could create multiple cases of liability causing drastic diversion of resources. Additionally it is argued that imposing such a duty could lead to deter actions to prevent antisocial behaviour taken by the landlords for the reason that warnings arise as matter of routine.24 According to that the landlords would examine the task of crime prevention which originally owed by the police.25 These would also lead to the requirement of spending a great amount of money in necessary equipment and training as well as the shift of focus away from the primary function. Notably, it is at least questionable how far the influence of public policy should reach. The statement of Lord Rodger, "...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"26demonstrates that the approach taken by the court is strongly policy-based. According to this, it can be argued that decisions should not be excessively based on policy as it is depending on the prediction of future behaviour.27 Furthermore this decision making can be seen as exceeding a courts function and interfering to the parliaments´ area of competence.28 It can be hold against that the court has to find the best possible balance between the social group of tenants and the impact on society at all. These balance cannot be achieved adequately without taking care about possible effects of the outcome.

22

Mitchell v Glasgow City Council 2009 SC (HL) 21 [27] Mitchell v Glasgow City Council 2009 SC (HL) 21 [27],[28],[69] 24 Mitchell v Glasgow City Council 2009 SC (HL) 2 [70] 25 Mitchell v Glasgow City Council 2009 SC (HL) 21 [70] 26 Mitchell v Glasgow City Council 2009 SC (HL) 21 [69] 27 Christian Whitting, ‘Duty of Care: An Analytical Approach’ (2005) 25 OJLS 38 28 McLoughlin v O’Brian [1983] 1 AC 410 p. 430 23

In light of these public policy considerations, ahead the practical effects, the House of Lords correctly found that it was not just, fair and reasonable to impose a duty of care in this case.

Consequences The statement of Lord Hope: “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 a result of the criminal act of a third party will arise only where a 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”29 can be seen as a clarification for landlords which will have no liability to their tenants in the ordinary course of matters. It has already been relied upon the stated obiter of Lord Hope in X v Hounslow LBC30. Nevertheless the case still give raise to questions and criticism about the application of public policy and a potential impact of this decision is the ongoing shift of ‘the perceived bias towards plaintiffs’31 by overusing policy consideration which consequently can lead to injustice. Considering the outlined arguments, I agree with the judgement and recommend to examine reasonable measures which are required on a case by case basis to meet the requirement of a pragmatic approach and be able to institute further development in this area of law.

Conclusion Taking everything into account it can be said that the overwhelming practical effects on the society justifies the restriction of the interests of individual litigations and the court was therefore right to dismiss the claim based on the circumstances. Moreover the established assumption that the three-fold test is applicable leads to increase the consistency in this area of law and eliminates the uncertainty of applying the test in practise

29

Mitchell v Glasgow City Council 2009 SC (HL) 21[29]

30

[2009] EWCA Civ 286

31

Helen Coonan, ‘Insurance Premiums and Law reform – Affordable Cover and the Role of Government’ (2002) 25(3) University of New South Wales Law Journal 819, 821.

although it has to be mention that further development is required in the form of new case law setting a substantial framework for different circumstances.

Part (b) Comment In my opinion the House of Lords was right to apply the three-fold test. Already the fact that the Scots law is closely intertwined with the English law in the area of torts indicates that there should be no exception for the application of the test. The vagueness of the test regarding to the definition of “fair, just and reasonable” has to be admitted. 32 However these “slippery words” 33 are not necessarily a disadvantage. It offers a broad scope of application possibilities hence it can deal with a range of different arising circumstances. Furthermore the recent case demonstrates the current problematic of the raising influence of policy. I agreed with the court, which decided that imposing a duty on City Council would not be fair, just and reasonable, based on the following arguments: The general function of tort law is to protect rights, especially of those who are at risk’. 34 In the recent case the outlined effects on society35 can be seen as a risk too and therefore they have to be balanced against the individual interest. It can be claimed that there is a focus on the effect of the decision on public rather than the claimant and the defendant36, hence an imbalanced focus. 37 I agree that there is a focus on the possible effect of the judgement, but I think that the court had to find the best possible balance between the social group of tenants and the impact on society at all. For me it seems to be a wrong approach to judge without considering potential effects on society especially when they are as far-reaching as in this case. I admit that there is an existing danger of overuse of policy considerations. I think that this danger should postpone behind the opportunity seeking justice based upon adequate balanced

32

Tony Weir, Tort Law (Clarendon Law Series) (OUP 2002) 41; Perrett v Collins [1998] 2 Lloyd’s Rep 255, 263, [1999] PNLR 77 33 Stovin v Wise [1996] AC 923 [931] 34 Anita Stuhmcke, Essential Tort Law (2nd ed, 2002) 1. 35 Mitchell v Glasgow City Council 2009 SC (HL) 21 at paragraphs [27],[28],[69] 36 Christian Whittin g, ‘Duty of Care: An Analytical Approach’ (2005) 25 OJLS 38 37 Ter Kah Leng ‘The search for a single formulation for the duty of care: back to Anns’ [2007] Prof Negl 218, 226

judgment, adapting all circumstances on a case by case basis, hence trust in the skills of judges to apply policy in an appropriate way should overwhelm the fear of a potential abuse. Besides these effects I think it is crucial that Glasgow City Council already performed to reduce the anti-social behaviour hence totally agree with the stated line that “no delictual liability can arise out of those legitimate steps as such.”38 Additionally it has to be mentioned that the persuaders are enabled to sue Mr. Drummond, hence they already have an instrument to achieve remedy.

38

Mitchell v Glasgow City Council 2009 SC (HL) 2 [58]

Bibliography Article/Books/ Journals Coonan, Helen ‘Insurance Premiums and Law reform – Affordable Cover and the Role of Government’ (2002) 25(3) University of New South Wales Law Journal 819, 821 Rodger, A“‘Say not the struggle naught availeth’: the costs and benefits of mixed legal systems” (2003) 78 Tulane L Rev 419, 427-428 Stuhmcke, Anita Essential Tort Law (2nd ed, 2002) 1 Ter Kah Leng ‘The search for a single formulation for the duty of care: back to Anns’ [2007] Prof Negl 218, 226 Webster, Peter Mitchell v Glasgow City Council: A Foreseeable Result?, EdinLR Vol 13 pp 477-481 Weir, Tony; Tort Law (Clarendon Law Series) (OUP 2002) 41 Whitting, Christian ‘Duty of Care: An Analytical Approach’ (2005) 25 OJLS 33, 35. Cases Anns v Merton London Borough Council [1978] AC 728 Caparo Industries plc v Dickman [1990] 2 AC 605 Donoghue v Stevenson [1932] AC 562 Forbes v City of Dundee District Council 1997 SLT 1330 Gibson v Orr 1999 SC 420 Hedley Byrne and Co. Ltd v Heller and Partners Ltd [1964] McLoughlin v O’Brian [1983] 1 AC 410 Mitchell v Glasgow City Council 2009 SC (HL) 21 Perrett v Collins [1998] 2 Lloyd’s Rep 255, 263, [1999] Smith v Littlewoods Organisation Ltd 1987 SC (HL) 37 Stovin v Wise [1996] AC 923 X v Hounslow LBC [2009] EWCA Civ 286...