Your World of Legal Intelligence
 United Kingdom | +44 (0) 20 7284 8080

Analysis

Document Cited authorities 17 Cited in Related
Vincent
DOI10.3366/E1364980909000717
AuthorElizabeth Shaw,Findlay Stark,William M Gordon,Peter Webster,Ross Gilbert Anderson,Lesley-Anne Barnes,David Cabrelli,Iain Jamieson,Douglas Brodie,Lindsay Farmer,Robert Goddard
Date01 September 2009
Pages477-533
Published date01 September 2009
<p>In the law of delict, leading cases often involve unfortunate facts. That is certainly true of <italic>Mitchell v Glasgow City Council</italic>.<xref ref-type="fn" rid="fn1-1"><sup>1</sup></xref><fn id="fn1-1"><label>1</label><p><a href="https://vlex.co.uk/vid/mitchell-and-another-v-793689357">[2009] UKHL 11</a>, <a href="https://vlex.co.uk/vid/mitchell-and-another-v-793689357">2009 SLT 247</a>.</p></fn> Mr Mitchell and Mr Drummond were neighbours, both tenants of Glasgow City Council under secure tenancies. In December 1994, following a dispute about noise, Drummond battered the door to Mitchell's house with an iron bar and smashed its windows. After the police became involved, he threatened to kill Mitchell. According to the pursuers' averments, this threat was repeated monthly thereafter. On 31 July 2001 the Council held a meeting with Drummond at which he was told that they were going to serve on him a notice of proceedings for the recovery of possession<xref ref-type="fn" rid="fn1-2"><sup>2</sup></xref><fn id="fn1-2"><label>2</label><p>Under the <span class="vid_spn">Housing (Scotland) Act 1987 s 47</span>.</p></fn> and that continued anti-social behaviour could result in his eviction. Drummond returned home and, at about 3pm that day, attacked Mitchell with a stick or iron bar. Mitchell died from his injuries. Drummond was charged with murder, but the Crown accepted a plea to culpable homicide.</p> <p>Mr Mitchell's widow and daughter sought damages from the Council on two grounds. They alleged that, by failing to consider Mitchell's safety when arranging the meeting with Drummond and, in particular, by failing to warn Mitchell either before or after the meeting, the Council had broken its common law duty of care. Had he been warned, Mitchell could have taken steps to avoid Drummond.<xref ref-type="fn" rid="fn1-3"><sup>3</sup></xref><fn id="fn1-3"><label>3</label><p><italic>Mitchell</italic> at paras 14, 38, 49. More extensive duties had been averred in lower courts: see <a href="https://vlex.co.uk/vid/mitchell-and-another-v-807436621">[2008] CSIH 19</a>, <a href="https://vlex.co.uk/vid/mitchell-and-another-v-807436621">2008 SC 351</a> at para 79.</p></fn> Further, it was argued that the Council had acted incompatibly with Mitchell's right to life under article 2 of the European Convention, in contravention of the <a href="https://vlex.co.uk/vid/human-rights-act-1998-852419308">Human Rights Act 1998</a>. The House of Lords held both claims to be irrelevant.</p> <p>This note considers only the negligence claim.<xref ref-type="fn" rid="fn1-4"><sup>4</sup></xref><fn id="fn1-4"><label>4</label><p>The article 2 claim failed as the pursuers were held not to have met the test set by <italic>Osman v UK</italic> (2000) 29 EHRR 245, namely that the Council knew or ought to have known of a “real and immediate risk” to Mitchell's life: see paras 32–34.</p></fn> Like many other decisions of the House of Lords in Scottish appeals regarding negligence, <italic>Mitchell</italic> is of significance beyond Scotland.<xref ref-type="fn" rid="fn1-5"><sup>5</sup></xref><fn id="fn1-5"><label>5</label><p>It has already been relied upon by the English Court of Appeal in <italic>X v Hounslow LBC</italic> <a href="https://vlex.co.uk/vid/x-v-hounslow-london-793996493">[2009] EWCA Civ 286</a>.</p></fn> It considers the general approach to determining whether a duty of care exists and, specifically, what is required in respect of omissions. It is, however, particularly noteworthy from a Scottish perspective because it has been previously been suggested that Scots law differs from English in both of these areas. The House of Lords held this not to be the case.</p> A UNIQUE SCOTS LAW OF NEGLIGENCE?

The primary hurdle for the pursuers was that their claim was in respect of an omission, not commission: the Council, it was argued, should have acted so as to protect Mitchell from Drummond. Sometimes the distinction between act and omission can be difficult to draw.6

Lord Rodger (at para 55) and Baroness Hale (at para 76) noted that this case was not a “pure” omission as the Council were actors in the events which led to Mitchell's death: they had arranged the meeting with Drummond and so had “provided the opportunity” for the attack. However, the pursuers’ argument was still that the Council had failed to take steps to protect Mitchell from a third party and so the rules on omissions were still applicable.

Critically, it is not simply a distinction between activity and passivity.7

C McIvor, Third Party Liability in Tort (2006) 9.

 However, “despite the difficulties, the distinction is fundamentally sound”.8

Stovin v Wise [1996] AC 923 at 930B per Lord Nicholls. For statements of the principle, see, e.g., Dorset Yacht Co Ltd v Home Office [1970] AC 1004 at 1060 per Lord Diplock; Stovin v Wise at 929H-931D per Lord Nicholls, 943E-944G per Lord Hoffmann.

 It is, in the words of Cardozo CJ, the difference between being an “instrument of harm” and an “instrument of good”.9

HR Moch Co Inc v Rensselaer Water Co 159 NE 896 (1928) at 898.

 To distinguish...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT