Mitchell v Glasgow CC [2008] CSIH 19

The widow of a man killed by his neighbour sued the council landlord for negligence. The council had threatened the aggressor with eviction but failed to warn the deceased. The court held the council owed no duty of care to warn.

Facts

The pursuer was the widow and executrix of Mr Archibald Mitchell. Mr Mitchell and his neighbour, Mr James Drummond, were both tenants of the defenders, Glasgow City Council. For a significant period, Mr Drummond subjected Mr Mitchell and his wife to a campaign of verbal abuse, threats, and vandalism. The Council was aware of this anti-social behaviour and had taken some steps, including issuing warnings to Mr Drummond. The situation escalated, and the Council convened a meeting with Mr Drummond on 31 July 2001. At this meeting, they informed him that they were considering initiating proceedings to recover possession of his house due to his behaviour and that he would be served with a Notice of Proceedings for Recovery of Possession. Shortly after this meeting, Mr Drummond returned to his property and fatally assaulted Mr Mitchell. The pursuer claimed the Council was negligent in failing to warn Mr Mitchell of the meeting and the potential risk posed by Mr Drummond following it.

Issues

The central legal issue was whether the defenders, as a local authority landlord, owed a common law duty of care to the late Mr Mitchell to take reasonable care to protect him from the violent criminal acts of another tenant, Mr Drummond. Specifically, the case turned on whether it was fair, just, and reasonable to impose a duty on the Council to warn Mr Mitchell of the steps they were taking against Mr Drummond and the potential for an adverse and violent reaction.

Judgment

The Inner House of the Court of Session, overturning the decision of the Lord Ordinary, held that no such duty of care was owed by the Council. The court allowed the defenders’ appeal (reclaiming motion) and dismissed the action. The judgment was based on a detailed application of the three-stage test from Caparo Industries plc v Dickman, with a particular focus on the third stage: whether it is fair, just, and reasonable to impose a duty.

Reasoning of the Court

Lord Osborne, giving the leading opinion, concluded that while foreseeability of harm might be established, and there was a degree of proximity between the Council and its tenants, it was not fair, just, or reasonable to impose the duty contended for. The court reasoned that imposing such a duty would constitute a significant and undesirable extension of the law of negligence into a new area. The judges were concerned about the public policy implications of such a duty on social landlords. They feared it would lead to defensive practices, where landlords might be less willing to take firm action against anti-social tenants for fear of being sued if they failed to issue a warning or if the warning proved ineffective or even inflammatory.

Lord Osborne stated:

In the whole circumstances, I cannot see that it would be in the public interest to impose the duty of care for which counsel for the pursuer contended. Its imposition would have the potential to lead to a cautious and defensive approach to the management of difficult tenants by local authorities and housing associations, which would be likely to be detrimental to the public interest. That approach would be calculated to produce an insidious and undesirable chilling effect upon the performance of their functions. For all of these reasons, on the basis of policy, there are overwhelming reasons for holding that no duty of care existed in the particular circumstances of the present case.

Furthermore, the court distinguished this case from those where a duty arises from an assumption of responsibility or control over the source of danger. The Council did not create the danger (Mr Drummond); it was merely managing a pre-existing problem. The decision to impose a duty of care in novel situations, particularly concerning omissions and the acts of third parties, was deemed a matter best left for Parliament. Lord Emslie noted:

In agreement with your Lordship in the chair, I consider that the imposition of such a duty in circumstances such as these would represent not a small, incremental step but a giant leap into a new field of liability, and that powerful considerations of public policy militate against it.

Implications

The decision reaffirmed the general legal principle that there is no general common law duty to prevent a person from being harmed by the criminal act of a third party, even where the harm is foreseeable. It highlighted the courts’ reluctance to impose duties of care on public authorities, particularly social landlords, where doing so could create defensive practices, divert resources from core functions, and lead to an indeterminate number of claims. The judgment strongly emphasised the importance of the ‘fair, just and reasonable’ criterion as a crucial control mechanism to prevent the undesirable expansion of negligence liability in new situations.

Verdict: The reclaiming motion (appeal) by the defenders, Glasgow City Council, was allowed, and the pursuer’s action was dismissed.

Source: Mitchell v Glasgow CC [2008] CSIH 19