A rare beast

It is rare for the common law, through the tort of negligence, to impose a duty of care on a party to take action to prevent to prevent the infliction of physical harm to a person by the malicious act of another. The House of Lords has reaffirmed this general position in Mitchell v Glasgow City Council [2009] UKHL 11, [2009] All ER (D) 182 (Feb).

The council were landlords to Mitchell and his next-door neighbour, Drummond, under protected tenancies within the provisions of the Housing (Scotland) Act 1987,

At his previous residence Drummond had pursued violent vendettas against his neighbours and upon his rehousing there was evidently no improvement in his relationship with them. Problems between Mitchell and Drummond began when the former was woken by loud music in the early hours of the morning and objected by banging on the party wall. Drummond returned the banging accompanied by verbal abuse. A few minutes later he battered in Mitchell's windows and door with an iron bar, as a result of which police were called and he was arrested.

Approximately a year after the first violent episode Glasgow Council was brought into the affair as the landlords. Drummond was told that if he persisted in his conduct, action for the recovery of his house would be commenced. After a further warning, and no improvement in matters, the council served on him a notice of proceedings for recovery of possession, pursuant to their powers under the 1987 Act. Some six months later the council wrote to Drummond inviting him to a meeting, which Drummond attended. On being informed that a fresh notice would be served on him, he later attacked Mitchell and beat him to death. He was subsequently convicted of culpable homicide.

An action in negligence was commenced against Glasgow Council by his widow and daughter on behalf of Mitchell's estate. The pursuer contended that the defenders owed him a duty of care with respect to a foreseeable harm which the pursuer had suffered. It was further averred that had the defender kept Mitchell informed of the current situation, as they had on earlier occasions, he would have been alerted to the risk and taken care to keep out of Drummond's way.

The law

In a situation where the defendant is acting in pursuance of functions under a statute, it is necessary to consider a construction of the Act itself, alongside the issues concerning the defendant's liability under the common law of negligence, in particular the primary question as to whether the common law duty of care arises. In Mitchell the circumstances in which the council was empowered to evict a protected tenant, and the procedures to be followed in so doing, were stipulated in the 1987 Act.

However, this would be relevant to the issue of breach of duty, rather than to the question as to whether the council was under any duty of care in relation to safety of the pursuer. As to the latter there was nothing in the 1987 Act to indicate one way or the other. The issue, then, remained to be considered as a matter of common law.

A general duty of care in negligence to act for the safety of another was considered by the House of Lords in Hill v Chief Constable of West Yorkshire [1989] AC 53, [1988] 2 All ER 238, the case of the “Yorkshire Ripper”. The basis of the action on behalf of the estate of his last victim was that had the police investigation into the murders been conducted with proper professional care, Sutcliff e would have earlier been detained and therefore denied the opportunity for his final crime against Miss Hill. The action failed on the ground, inter alia, that the police owed no general duty of care to the public at large of the kind contended for.

Mitchell is distinguishable from Hill, in that in the former, the person at risk was identifiable, indeed known by the defender. But the analogous cases nonetheless show a clear reluctance in the courts to recognise a duty of care where the immediate cause of harm is the criminal act of a third party, outside of a situation where a relevant relationship between plaintiff and defendant already exists.

It was argued for the pursuer in Mitchell that since the council were landlords both to Mitchell and to Drummond, a relevant relationship was in existence, leaving open the remaining question as to whether the harm which befell Mitchell ought to have been reasonably foreseeable by the council. The House of Lords was unanimous in rejecting this contention and holding that no duty of care had arisen. The remaining question is whether, on the facts, the council had assumed a responsibility for protecting Mitchell from violence at Drummond's hands. It was held they had not.