Analysis
| DOI | 10.3366/E1364980909000717 |
| Author | Elizabeth Shaw,Findlay Stark,William M Gordon,Peter Webster,Ross Gilbert Anderson,Lesley-Anne Barnes,David Cabrelli,Iain Jamieson,Douglas Brodie,Lindsay Farmer,Robert Goddard |
| Date | 01 September 2009 |
| Pages | 477-533 |
| Published date | 01 September 2009 |
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.
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.C McIvor,
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