Anne Mitchell+karin Mitchell (aps) V. Glasgow City Council
| Jurisdiction | Scotland |
| Judge | Lord Reed,Lord Penrose,Lady Paton |
| Neutral Citation | [2008] CSIH 19 |
| Docket Number | A1700/03 |
| Published date | 29 February 2008 |
| Date | 29 February 2008 |
| Court | Court of Session |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lady Paton Lord Reed Lord Penrose | [2008] CSIH 19 A1700/03 OPINION OF LADY PATON in RECLAIMING MOTION in the cause ANNE MITCHELL and KARIN MITCHELL (Assisted Persons) Pursuers and Reclaimers; against GLASGOW CITY COUNCIL Defenders and Respondents: _______ |
Act: McEachran Q.C., Miss Stirling; Drummond Miller W.S. (Pursuers and Reclaimers)
Alt: A. Smith Q.C., R.W. Dunlop; Legal Services Department, City of Edinburgh Council (Defenders and Respondents)
29 February 2008
Introduction[1] James Dow Mitchell, aged 72, ("the deceased") died on 10 August 2001 as a result of an assault by his neighbour James Drummond ("Drummond") on 31 July 2001. Drummond was subsequently charged with murder. On 12 July 2002, the Crown accepted his plea to culpable homicide. It was therefore unnecessary for evidence to be led at a trial.
[2] In 2003, the deceased's widow and daughter raised the present civil action of damages against Glasgow City Council in respect of the death. The defenders had been the local authority landlords of both the deceased and Drummond at all relevant times. The defenders had been aware of Drummond's threatening and aggressive behaviour towards the deceased, including claims that he would kill the deceased if he (Drummond) were to be evicted. The attack on the deceased occurred shortly after a meeting between the defenders and Drummond, at which Drummond's possible eviction for anti-social behaviour towards the deceased was discussed. The pursuers maintain that the defenders owed the deceased and his family a duty of care (a) to instigate eviction proceedings against Drummond within a reasonable time of complaints about Drummond's behaviour being made, and in any event by October 1999 at the latest; and (b) to warn the deceased about the meeting with Drummond.
[3] After a debate, the action was dismissed as irrelevant (2005 S.L.T. 1100). The pursuers now reclaim against that dismissal.
History of events[4] The pursuers' pleadings give the following outline of events:
[5] In the early 1980s, Drummond lived in Middleton Street, Glasgow. He behaved in an anti-social manner. He attacked his neighbours with a tyre lever.
[6] In May 1985, Drummond took up a local authority tenancy at 225 Bellahouston Drive, Mosspark, Glasgow. In March 1986, the deceased (then aged 56) and his family moved into the neighbouring local authority house at 221 Bellahouston Drive.
[7] In the early hours of the morning of 23 December 1994, Drummond played loud music in his home. The deceased banged on the wall to remonstrate. Drummond retaliated by banging on the wall, shouting abuse, and coming to the deceased's front door armed with an iron bar. Drummond battered the deceased's door leaving five holes. He also smashed the deceased's windows. The police arrived and arrested Drummond. Drummond shouted that the deceased was a dead man, and that on release from jail, he (Drummond) would kill the deceased. The defenders subsequently replaced the deceased's broken windows. In view of the effect of Drummond's behaviour on the deceased's health, and the deceased's concerns for himself and his family, the defenders installed a new, more secure, front door.
[8] On 27 December 1994, Drummond followed the deceased home, shouting abuse and telling him that he was "f---ing dead meat after the court case". The police attended.
[9] On 1 and 2 January 1995, there were further incidents of abuse. The police attended. By March 1995, the defenders had interviewed Drummond about his behaviour. They gave him a written warning about his future conduct. They specifically warned him that if matters persisted they would instigate legal proceedings against him, namely an action to recover possession of his house. The defenders advised the deceased to keep a record of complaints against Drummond.
[10] Thereafter Drummond made threats against the deceased at least once a month. He regularly threatened to kill the deceased. The police were often called. There were incidents in 1996, 1997, 1998, 1999, 2000, and 2001. The deceased and his family consulted city councillors, and a member of the Scottish Parliament. The councillors and the MSP wrote to the defenders about the problem. The deceased and his family also wrote to the defenders about the abuse. On 12 August 1999, Victim Support wrote to the defenders, advising that other residents in Bellahouston Drive feared retaliation from Drummond if they gave evidence against him, and that the incidents were adversely affecting the deceased and his family. On 31 August 1999, a resident at 216 Bellahouston Drive (Helen Anderson) gave the defenders a signed statement confirming an incident which had taken place on 26 August 1999. Mrs Anderson stated that she had heard Drummond threatening to kill the deceased on that occasion, and on many other occasions; that the police had removed Drummond in hand-cuffs on many occasions; that Drummond intimidated elderly residents; and that there was a risk of real injury to the deceased and his wife. Mrs Anderson asked the defenders to take action. During an incident on 3 September 1999, Drummond made threats to the deceased about what he would do to him if the defenders were to evict him (Drummond). On 31 March 2000, Drummond made detailed threats about killing the deceased.
[11] In January 2001, an incident involving Drummond's behaviour towards the deceased was recorded on two video tapes. Drummond was charged with breach of the peace. The defenders warned Drummond that he might be evicted if his behaviour did not improve. At the end of January 2001, the defenders served on Drummond a Notice of Proceedings for Recovery of Possession, which was valid for six months. At that stage, the defenders kept the deceased informed of the steps which they were taking.
[12] During the next six months, the problems between Drummond and the deceased escalated. The defenders were aware of that escalation. There was an incident on 12 June 2001, which was video-recorded. The deceased reported the incident to the defenders, and also expressed concern that the defenders did not appear to be taking action about his complaints. There was a further incident on 10 July 2001. The police were involved. Drummond was arrested and charged with breach of the peace. The defenders received a police report about the incident.
[13] In total, the police were involved in at least forty incidents.
[14] By letter dated 26 July 2001, the defenders invited Drummond to a meeting to be held on 31 July 2001. The purpose of the meeting was to discuss the incident on 10 July 2001, and the first Notice of Proceedings for Recovery of Possession. Given the continuing problems, the defenders were considering issuing a follow-up Notice of Proceedings for Recovery of Possession. The defenders did not advise the deceased about the meeting.
[15] The meeting began at 2 p.m. on 31 July 2001. The defenders advised Drummond that a fresh Notice of Proceedings for Recovery of Possession would be served on him, and that the defenders would continue to monitor complaints about his behaviour. The defenders advised Drummond that his continuing anti-social behaviour towards the deceased could result in his eviction. Drummond lost his temper and became abusive. He then apologised to the defenders for having lost his temper.
[16] The defenders did not warn the deceased about the meeting or its purpose. Nor did they make any attempt to warn the deceased or the police about Drummond's behaviour at the meeting, or any possible risk of retaliation by Drummond against the deceased.
[17] On leaving the meeting, Drummond returned to Bellahouston Drive. At about 3 p.m. he violently assaulted the deceased. Subsequently, on 10 August 2001, the deceased died of his injuries.
Pursuers' action against the defenders[18] The pursuers raised the present action against the defenders, averring that the defenders owed the deceased a duty of care (a) to instigate legal proceedings for the recovery of Drummond's property within a reasonable period of time after complaints had been made, and in any event by October 1999 at the latest; and (b) to warn the deceased about the meeting with Drummond on 31 July 2001, the purpose of the meeting, the nature of Drummond's behaviour at the meeting, and any resulting risk to the deceased. The pursuers rely upon the common law, and Article 2 of the European Convention on Human Rights (ECHR).
[19] Article 2 provides:
" Right to life
1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person
lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or
insurrection."
[20] The pursuers' averments in Articles 12, 13, and 14 of Condescendence are as follows:
"COND. XII The defenders knew that James Drummond had threatened to harm James Dow Mitchell if he was evicted. The defenders knew or ought to have known by 11th July, 2001 that they would require to consider the incident of 10th July, 2001 and whether it would merit further steps being taken towards recovery of possession of the property. They knew or ought to have known by 26th July, 2001 that James Drummond was likely to be hostile towards James Dow Mitchell following the meeting they were arranging for 31st July, 2001. They took no steps to advise James Dow Mitchell that a meeting had been arranged for 31st July, 2001 and that he might be in danger. The defenders knew that James Drummond had lost his...
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