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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mitchell v. Glasgow City Council [2005] ScotCS CSOH_84 (30 June 2005) URL: http://www.bailii.org/scot/cases/ScotCS/2005/2005CSOH84.html Cite as: 2005 SLT 1100, [2005] CSOH 84, [2005] ScotCS CSOH_84, 2005 SCLR 920, 2006 Hous LR 8, 2005 Rep LR 101, 2005 GWD 34-645

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Introduction

[1] This case came before me for a discussion on the procedure roll on the first plea-in-law for the defenders. The defenders moved me to sustain the first plea-in-law and dismiss the action. The pursuers moved for a proof before answer.

[2] The pursuers are respectively the widow and daughter of the late James Dow Mitchell ("the deceased"). At the time of his death the deceased lived with his family at 221 Bellahouston Drive, Mosspark, of which house he had been the tenant since March 1986. Next door, at 225 Bellahouston Drive, lived James Drummond who had been the tenant of that house since May 1985. Both properties were owned by the defenders as the local authority. Accordingly, at all material times the defenders were the landlords of both the deceased and James Drummond.

[3] On 31 July 2001 at about 3 p.m. James Drummond assaulted the deceased causing injuries from which he died on 10 August 2001. On 12 July 2002 James Drummond pled guilty to culpable homicide and was sentenced to eight years imprisonment.

[4] The pleadings disclose a lengthy history of bad behaviour on the part of James Drummond towards the deceased. There is no significant dispute about the nature and detail of that behaviour. It is averred that on a number of occasions beginning in December 1994 James Drummond conducted himself in a violent, aggressive and abusive manner towards the deceased. It is averred that towards the end of 1994 an incident occurred in which James Drummond was playing loud music in the early hours of the morning. After the deceased had banged on the wall to remonstrate with him, James Drummond went to the door of the deceased's house. He damaged the door and broke the windows of the house. James Drummond threatened to kill the deceased when he came out of jail. In the succeeding weeks similar threats were made. Thereafter, on a regular basis he threatened to kill the deceased. On a number of occasions James Drummond was arrested for breach of the peace. This behaviour continued over the years and the police were involved in at least forty incidents.

[5] The deceased reported this behaviour to his local councillors and his MSP. Each of them, in turn, advised the defenders of the behaviour. In addition, Victim Support advised the defenders in August 1999 that other residents in the street feared retaliation if they gave evidence against James Drummond. At the end of August 1999 one of the residents provided the defenders with a signed statement informing them that she had heard James Drummond threatening to kill the deceased on many occasions. She had advised them that there was a risk of injury to the deceased. On numerous occasions between June 1999 and June 2001 the deceased himself reported incidents to the defenders. Incidents on 26 August 1999 and 31 March 2000 involved threats by James Drummond to kill the deceased. The incident on 3 September 1999 involved threats to the deceased if James Drummond was evicted by the defenders.

[6] In 1995 the defenders interviewed James Drummond and gave him a written warning as to his future conduct. The defenders advised the deceased that they would instigate legal action for the recovery of James Drummond's house if matters persisted. The lease between the defenders and James Drummond provided that the defenders were entitled to seek repossession of 225 Bellahouston Drive if James Drummond was guilty of conduct in or in the vicinity of the house which was a nuisance or annoyance to neighbours and in the opinion of the defenders it was appropriate in the circumstances to require James Drummond to move to other housing. In January 2001 the defenders served on James Drummond a Notice of Proceedings for Recovery of Possession. On 10 July 2001 a further incident occurred as a result of which James Drummond was arrested. The defenders received a Police Report in relation to the incident. On 26 July 2001 the defenders wrote to James Drummond inviting him to a meeting to discuss that incident and the Notice which had been served on him in January. The defenders aver that at that time they were considering issuing a follow up Notice. The meeting took place on 31 July 2001. At this meeting the defenders advised James Drummond that a further Notice was being issued and he was warned about his future conduct which would be monitored. The defenders aver that this was a final warning and that they had resolved to await the trial of James Drummond which was due to take place on 5 October 2001. At the meeting James Drummond lost his temper and apologised for having done so. About one hour after the meeting James Drummond assaulted the deceased causing the injuries which led to his death.

[7] Against that background the pursuers have raised the present action against the defenders. The duties of care on which the pursuers relied were first, a duty to evict by October 1999 at the latest; and, second, a duty to warn the deceased of the meeting of 31 July 2001 and its outcome.

[8] Counsel for the defenders submitted that there was no common law duty of care owed by a landlord arising out of the acts or omissions of a tenant (Smith v Scott [1973] Ch. 314; O'Leary v The London Borough of Islington [1983] 9 H.L.R. 83 and Mowan v Wandsworth London Borough Council [2001] L.G.R. 228).

[9] Because the primary duty asserted by the pursuers was a duty to evict James Drummond, counsel for the defenders explored the possibility that the pursuers might be seeking to construct a duty of care arising from the exercise of statutory powers by the defenders under the Housing (Scotland) Act 1987 ("the 1987 Act"). In terms of section 47 of the 1987 Act it would be open to the defenders to raise proceedings for recovery of possession of the house by way of summary cause in the Sheriff Court.

[10] Counsel submitted that no duty of care sprang from the statutory context of the 1987 Act. Mr Dunlop referred to X (Minors) v Bedforshire County Council [1995] 2 AC 633. These were child abuse cases in which the plaintiffs claimed damages for personal injury arising out of breach of statutory duty and negligence by the council.

[11] Mr Dunlop suggested that the pursuer's position appeared to be that a common law duty of care was said to arise from the position of the defenders as landlords under the 1987 Act. The defenders had a statutory duty to house persons such as James Drummond. The authority was given a discretion as to how to do that. In the exercise of that discretion policy matters would be taken into account. These would include the allocation of finite resources. It was for the local authority not the Court to arrive at a decision on policy matters. There was a statutory discretion in the exercise of the power to seek recovery of possession. If an act was within the discretion of the local authority it had been authorised by statute and did not give rise to a duty of care.

[12] Further, counsel for the defenders submitted that no duty of care arose from any omission by the defenders to act in the course of the statutory relationship as landlords. (Stovin v Wise [1996] AC 923 and Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057).

[13] Next, counsel for the defenders submitted that to impose a duty of care on the defenders would not be fair, just and reasonable (Caparo Industries plc v Dickman [1990] 2 AC 605). Again, counsel relied on X. Mr Dunlop submitted that the imposition of a duty of care on a local authority landlord to take care for the acts and omissions of a tenant would have such wide ranging consequences that it would interfere with the local authority's ability to carry out its functions under the 1987 Act. If the imposition of a common law duty of care would interfere with the statutory aim it was not fair, just and reasonable to impose a duty of care. The Court should be very wary before imposing a duty of care on an authority given powers to protect the weaker persons in society.

[14] Counsel for the defenders relied strongly on Hussain v Lancaster City Council [2000] QB 1. The circumstances which arose in this case were very similar to the present case. Mr Dunlop stressed the reference to the variety of agencies involved, including the police, the probation service, the housing authority and the social services. In areas with high crime rates the imposition of a duty of care such as that for which the pursuers contended could create multiple cases of liability causing drastic diversion of resources. Counsel submitted that the case of Hussain was on all fours with the present case. This was also a case in which the council whose tenants were to the knowledge of the council carrying out criminal acts. The law of Scotland was the same in this regard as the law of England and therefore the principles that it would not be fair, just and reasonable applied to the present case. There would be a drastic interference with the purpose of the 1987 Act if the local authority were to have a duty of care arising from the acts of their tenants. It would also mean that there would be no valid distinction between a local authority landlord and a private landlord having a duty of care. This would mean that all landlords would have a duty of care arising from the negligence or criminal acts of the tenants. In addition, it would apply to other bodies including the police, hospital emergency services. It would fly in the face of the decisions in the cases of Stovin and Gorringe. If a duty of care existed it would apply not just in a case where death results but the council would be liable to be sued for any wrong no matter how venial the harm. For example, a tenant with loud music being played next door could sue the local authority.

[15] Mr Dunlop also pointed out that the decision in Hussain was made without the need to hear evidence. The law was settled and there was no need to hear evidence.

[16] Counsel for the defenders submitted that the pursuer's averments were not sufficient to establish that it was reasonably foreseeable that Drummond would attack and kill the deceased. The background included repeated instances of Drummond saying that he would kill the deceased. These incidents extended back to 1994. The defenders had told Drummond that he might be evicted in January 2001 and no violence had arisen at that time. Why ought the local authority to have foreseen that telling Drummond in July 2001 that he might be evicted would give rise to an attack of lethal force. Mr Dunlop referred to passages on the question of foreseeability in Home Office v Dorset Yacht Company [1970] AC 1004 and Smith v Littlewoods [1987] AC 241. Mr Dunlop submitted that the pursuers' averments in article 9 to events on 31 July 2001 and in article 12 at page 18A did not meet the test of forseeability in these circumstances.

[17] With respect to the pursuers' case based on Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") counsel for the defenders submitted that the circumstances in Osman v The United Kingdom [1998] 29 EHRR 245 demonstrated that it was a much stronger case than the present case. Counsel submitted that certain principles could be drawn from the decision. First, the obligation on the authority must be construed in such a way as not to impose impossible or disproportionate burdens on the authority. Second, for preventative steps to be required it must be known to the defenders that there was an immediate risk. In the present case the only point at which there was such a risk was between 2.00 and 3.00pm on 31 July 2001 just before the deceased was killed. So far as the defenders were concerned all that had happened on that date was that James Drummond has lost his temper and apologised. That did not amount to a real and imminent risk. The submissions already made on foreseeability and causation applied equally to the Convention case.

[18] Counsel for the pursuers invited me to allow a proof before answer. Counsel referred to the test in Jamieson v Jamieson 1952 S.C. (H.L.) 44 at p.50. In cases of personal injury the court will be slow to dispose of a case on procedure roll. (Miller v South of Scotland Electricity Board S.C. (H.L.) 20 at p.33).

[19] Miss Stirling recognised that the case was an exceptional and novel one. She went so far as to say that had the death occurred prior to the introduction of the European Convention of Human Rights its prospects might have been somewhat different.

[20] Counsel for the pursuers submitted that the duties of care on which the pursuers relied were first, a duty to evict by October 1999 at the latest; and, second, a duty to warn the deceased of the meeting of 31 July 2001 and its outcome. Both these were pled as common law duties. The local authority was subject to the same duties as any other landlord. If the local authority wished to plead a defence under the Housing (Scotland) Act 1987 it would be open to them to do so, and that could be determined at proof. All residential landlords required to go to court to recover possession if the tenant was unwilling to move.

[21] Counsel for the pursuers referred to the requirements for the establishment of a duty of care set out in Caparo Industries plc v Dickman [1990] 2 AC 605. The pursuer had made many averments with respect to the foreseeability of the injury. In Article 5 the long-standing nature of incidents was set out. In Article 6 reference was made to reports made to councillors and to the defenders. In Article 7 it was averred that the deceased himself had reported the matter to the defenders. The defenders had been on notice that Mr Drummond had threatened to kill the deceased if he was evicted. In Article 8 the response of the defenders was set out. It was against that background that on 31 July 2001 the defenders had a meeting at which Mr Drummond lost his temper. Miss Stirling posed the question as to why a letter was not issued to the deceased at the same time that the defenders issued a letter to James Drummond asking him to come in.

[22] So far as proximity was concerned, given that the defenders were the landlords of both tenants who were neighbours, and that the defenders were recipients of complaints from the deceased, the test of proximity was met.

[23] In considering the question as to whether it was fair, just and reasonable to impose a duty of care on the defenders Miss Stirling referred to the averments at p.7E-8B where it was averred that the lease between the defenders and Drummond provided that the defenders were entitled to seek repossession of his flat if he was guilty of conduct which was a nuisance or annoyance to neighbours and in the opinion of the defenders it was appropriate in the circumstances to require him to move to other housing. Thus his lease contained a clause with respect to eviction. In addition, the provisions of the Housing (Scotland) Act 1987 made reference to antisocial behaviour and causing nuisance and annoyance. Thus both the statutory provisions and the lease suggested that one of the policies in good management of a council estate involved eviction and it might be expected that these might be required to be used in circumstances such as the present. The pursuers made extensive averments of previous incidents and the averments make it clear that Mr Drummond was a danger to the deceased and other residents. If the defenders had a discretion as to whether to take steps to recover possession, the defenders had taken themselves outwith the discretion in failing to act.

[24] Miss Stirling submitted that in X v Bedfordshire County Council the House of Lords had considered the issues relating to the whole statutory system of children at risk and public policy reasons for making liability for such difficult decisions. These did not apply in a landlord/tenant relationship. The considerations which led the House of Lords to say in X that it was not fair, just or reasonable to impose the duty of care were very different from the duties owed between a landlord and tenant. Further, decisions subsequent to X had held that the local authority may be liable to children once they have come into care and there had been decisions where the police have been held liable where the victim of a potential crime was known. The present case would not lead to the opening up of floodgates because in many cases the attempt would fail on the grounds of foreseeability or proximity, both of which were met here.

[25] Counsel for the pursuers submitted that there was authority for a landlord being liable for the actions of a tenant in nuisance in Scots law. She referred to Fleming v Gemmill 1907 S.C. 340. She also drew support from Chartered Trust plc v Davis [1997] 2 EGLR 83. Both of these cases related to private landlords so there was no need for the pursuers to rely on the provisions of the Housing (Scotland) Act 1987. The present case was not so different from the situation in each of these cases and could be seen as an example of the incremental change envisaged in Caparo.

[26] Miss Stirling sought to distinguish Smith v Scott. She pointed out that the duty founded on in Smith related to the selection of tenants and the period over which the events were said to have happened was much shorter. The duties founded upon in the present case were different. She also sought to distinguish Hussain v Lancaster City Council. In that case the claims were brought under statute. The case of Hussain was decided five months before the Osman case. In Hussain the Charter Trust case was distinguished as being a special case. It was not clear that in Hussain the properties were adjoining. A factor in considering whether the imposition of a duty of care was fair, just and reasonable in Hussain was the requirement to involve other authorities and parties. Fleming was not referred to in Hussain or in Smith v Scott. It was clear in Hussain that considerable reliance was placed on the cases of X and Stovin. It was necessary to treat the decision in Hussain with caution because it was decided prior to the introduction of the Human Rights Act 1998.

[27] The second duty on which the pursuers relied was the duty to warn between 11 and 31 July and, in particular, on 26 July when the date of the meeting was fixed and a letter sent to Mr Drummond. The imposition of such a duty would be a very minor burden on the defenders and it would be fair, just and reasonable to impose such a burden.

[28] The policy of the Housing Act to house the homeless was only one aspect of the Housing Act; there were others including the protection of other tenants and the removal of neighbours who cause nuisance. The requirement to house the homeless did not extend to those who are intentionally homeless and were Mr Drummond to be evicted it might be held that he had made himself intentionally homeless. Miss Stirling submitted that the court ought not to decide at this stage which policy was more important. These issues ought not to be explored on the basis of pleadings and submissions alone, but should be matters of proof.

[29] This was not a case of liability for an omission as was the case in Stoven, nor was it a "rescue" type of case. The defenders created the danger by telling Drummond that steps were being taken towards eviction and did so in circumstances where they knew that Drummond had previously threatened to kill the deceased if he was evicted. The defenders were effectively "lighting the blue touch paper". If a person creates a danger he has a duty to warn those who may be affected.

[30] Miss Stirling referred to Gibson v Orr 1999 SC 420. This case was not referred to in Gorringe and was decided after Stoven and X. In this case Lord Hamilton held that a duty of care had been owed by the police in a case where police officers had in furtherance of their function of protecting life and property in a civil context, taken control of a hazard on a public road. In that case it was held that a sufficiently proximate relationship existed with road users likely to be immediately and directly affected by the hazard, and that that the duty of care might extend not only to the manner of the exercise of that control, but also to the circumstances of the relinquishment of it. It was held that in relation to whether it was fair, just and reasonable to impose a duty of care as a matter of policy, there was no immunity for the police in performance of civil operational tasks concerned with human safety on the public roads in the circumstances of this case. It was held that viewing the concession of foreseeability being present and the elements of proximity and what was fair, just and reasonable as a composite test, a duty of care had been owed.

[31] Miss Stirling submitted that it was by no means clear that the eviction of a troublesome tenant would be a policy matter as opposed to an operational one. The policy might relate to eviction in general. The giving of a warning would clearly be an operational matter.

[32] Miss Stirling submitted that it could not be said at this stage that the pursuer must necessarily fail on the fair, just and reasonable element. In this case the defenders knew of a specific threat in particular circumstances, which circumstances the defenders themselves had provoked, and the threat was to a known individual. In these circumstances a floodgates argument did not arise. In most cases the foreseeability test will not be met. The fair, just and reasonable element might also limit liability. This was an exceptional case which should not be dismissed without enquiry.

[33] Under reference to Barrett v Enfield [2001] 2 AC 550 Miss Stirling submitted that in a novel case such as the present it was appropriate to explore the case in evidence before concluding whether there was a duty of care.

[34] Miss Stirling then turned to the arguments on the Convention case. She referred to the Human Rights Act 1998 section 6(1) and (6). She referred to Article 2 of the Convention and the right to life. She pointed out that the court's decision in Osman that there was no breach of Article 2 was on a much more restricted factual basis than was set out in the alleged facts in paragraphs 10 to 57. It was important to understand that the court in Osman was looking at the case against the police and not the other agencies which had been involved. When that was recognised it was clear that, contrary to what Mr Dunlop had submitted, the facts were less severe in the facts in the present case. She submitted that a telephone call to the deceased or a letter sent to him at the same time as to Drummond would not have imposed an impossible or disproportionate burden on the authorities. The defenders knew that there was a real and immediate risk after 2.00pm on the day of the meeting. They had known for five days before that that there would be a risk after 2.00pm that day. They knew that, because that is when the letter was sent to Drummond fixing the meeting. The test in paragraph 116 p.306 of Osman was met.

[35] Under reference to Z and Others v The United Kingdom [2002] 34 EHRR 97 Miss Stirling submitted that there had been no effective enquiry into the role of the defenders in the death of the deceased. This was contrary to the requirements of the Convention. Z was authority for the proposition that the exclusionary rules developed by the English courts to protect social workers, the police and fire services will not apply in cases involving death or degrading treatment. If exclusionary rules applied in that way the pursuer would be without a remedy which would be in breach of Article 13 of the Convention.

[36] Miss Stirling drew support from R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653 for the proposition that there ought to be an investigation where death ensues and it is claimed that the authority bears some responsibility.

[37] Mr Smith Q.C., Senior Counsel for the defenders submitted that there was very little in dispute and taken pro veritate the pursuers' claim was still going to fail. Under reference to the speech of Lord Reid in Jamieson at p.63. He submitted that this was a case where it was not going to get any better.

[38] Mr Smith submitted the suggestion made by Miss Stirling that without proof there was no effective inquiry, was wrong. A case of this kind could not be approached on the basis that this was a method for obtaining public inquiry. It would have been open to the pursuers to ask the Crown to set up a Fatal Accident Inquiry (see Lord Hope in Amin p.676).

[39] Gibson v Orr had proceeded on a clear concession that there was an assumption of responsibility which was not made here. In that case it was accepted by the defender that it was reasonably foreseeable that, if the collapsed bridge were not closed off, a fatal accident might occur. It was also accepted that it could have been closed off by the police in time to avoid the accident. This, said Mr Smith, was a very different situation from the present one. In Gibson there was a very narrow argument about the immunity of the police and the proximity of the relationship between the police and the pursuer.

[40] Mr McEachran Q.C., senior counsel for the pursuers, referred to Osman at paras.115 and 116. There was an obligation to take preventative operational measures. Paragraph 116 highlighted the requirement to have an inquiry. Against a background where there had been threats for five years, and the defenders had knowledge of that, there was a real and immediate risk to life. All the pursuers were expecting was that the defenders should have made contact with the deceased. Anyone applying his mind to the situation where the defenders were calling Mr Drummond in to give him another six months notice should have concluded that the deceased ought to be advised. The failure to do that had caused loss of life.

[41] Mr McEachran further submitted that in an Article 2 case there required to be an inquiry. I should allow the case to proceed to proof before answer.

[42] Counsel for the pursuers accepted that the case was unusual and raised a novel point. The existence of the duty of care for which the pursuers contend could have far reaching consequences for local authorities. The extent of the liability of public authorities such as the defenders is an area of developing law. These considerations tend to suggest that a degree of caution is required. A number of English cases would tend to support the proposition that a local authority landlord does not owe a duty of care to a tenant with respect to criminal acts committed against that tenant by another tenant of the local authority. It is necessary to examine these cases. In some of the cases the language used suggests a limitation or exclusion of liability for a claim based on negligence in cases involving the use of land. In the later cases the emphasis is more on the fair, just and reasonable test set out in Caparo Industries plc v Dickman [1990] 2 AC 605. In that regard it is also necessary to consider the tests of proximity and forseeability. It is also necessary to consider the effect of Fleming v Gemmill 1907 S.C. 340 and Chartered Trust plc v Davis [1997] 2 EGLR 83, on which the pursuers relied. In addition, I shall examine the impact of the Convention on the question of whether a duty of care arises in the circumstances of the present case.

[43] In Smith v Scott [1973] Ch. 314 the plaintiff was the registered owner of a dwelling house in a street which was being acquired by the defendant corporation to house homeless families. In July 1971 the corporation placed as tenants in the house adjoining that of the plaintiff a family known by the corporation to be likely to cause a nuisance, but on conditions of tenancy that expressly prohibited the committing of a nuisance. Thereafter the tenant so damaged the plaintiff's premises and caused such a noise that he was obliged to leave his house and seek other accommodation. On the question as to whether the corporation would be liable as having failed in a duty of care, it was held that it was not open to the Court to reshape the law relating to the rights and liabilities of landowners by applying the principle of Donohue v Stephenson [1932] AC 562 and thus saying that a landowner owed a duty of care to his neighbour when selecting his tenants. Pennycuick, V.C. at page 322 said:

[44] The decision in Smith v Scott was approved by the Appeal Court in O'Leary v The London Borough of Islington [1983] 9 H.L.R. 83. Tenants of the Borough of Islington complained about the conduct of another tenant. It was noted at page 85 that if the principle applied to a local authority it would also apply to a private landlord.

[45] In X (Minors) v Bedforshire County Council [1995] 2 AC 633 a number of claims child abuse cases were considered. The plaintiffs claimed damages for personal injury arising out of breach of statutory duty and negligence by the council. They alleged that they had suffered parental abuse and neglect, that the council had received serious reports of such treatment but had failed to investigate the matter adequately or protect the plaintiffs from further harm. The proposition here was there was a third party wrongdoer whose actions had been brought to the attention of the local authority. The local authority had failed to act and the question was whether they were negligent in failing to act. Dealing with actions based on a common law duty of care arising either from the imposition of a statutory duty or from the performance of it Lord Browne-Wilkinson, who gave the leading speech with which the other members of the appellate committee agreed, said at page 735:

He went on at page 736 to say:

And at page 737 Lord Browne-Wilkinson said:

After considering a number of authorities he drew certain principles:

Lord Browne-Wilkinson at page 739 said:

In the passage in the speech of Lord Bridge of Harwich in Caparo Industries plc to which Lord Browne-Wilkinson referred Lord Bridge said at p.617H:

[46] After noting that the requirements of foreseeability and proximity were met in X, Lord Browne-Wilkinson concluded that it would not be fair, just and reasonable to impose a duty of care. A common law duty of care would cut across the whole statutory system set up for the protection of children at risk, involving close inter-disciplinary co-operation. The task of the local authority in dealing with children at risk was extraordinarily delicate. If liability in damages were to be imposed it might well be that local authorities would adopt a more cautious and defensive approach to their duties. Other remedies for maladministration of the system where a available; if no other remedy were available that would provide substantial argument for imposing a duty of care. No category of case had been cited in which a duty of care had been held to exist which was in any way analogous, so that there was no basis for proceeding incrementally and by analogy with decided categories.

[47] The circumstances which arose in Hussain v Lancaster City Council [2000] QB 1 were very similar to the present case. The plaintiffs, who owned a shop and residential property on a council housing estate, brought an action in nuisance and negligence against the council, alleging that the council had failed to exercise its statutory powers as either a housing or a highway authority to prevent its tenants and/or members of the tenant's households from committing criminal acts of harassment against the plaintiffs. The plaintiffs sought damages and injunctions requiring the council to take steps to avert the nuisance or to remove the perpetrators.

The council had a standard form of tenancy agreement which included a provision that the tenant was to make sure that the tenant and people living with him should show proper consideration towards other residents in the area and were not to do anything which may cause discomfort, annoyance or nuisance from noise, unreasonable or anti-social behaviour. In addition, they were not to discriminate against or harass any resident or visitors. The Court of Appeal recognised that the case raised issues of considerable general importance as to whether a local authority could be held liable in nuisance or negligence because it failed to prevent secure tenants from committing criminal acts of harassment against nearby property owners. The Court held that in the circumstances it would not be fair, just or reasonable to hold the council negligent in the exercise of its discretionary statutory powers under the housing or highway legislation; and that accordingly the plaintiffs had failed to establish a viable cause of action in nuisance or negligence and their claim would be struck out. X (Minors) v Bedfordshire County Council [1995] 2 AC 633 was applied. Hirst L.J. at page 24H said:

[48] In Mowan v Wandsworth London Borough Council [2001] L.G.R. 228 the claimants occupied a flat on a lease granted under the right to buy legislation by the first defendant, the local authority. The second defendant occupied the flat above on a secure tenancy granted by the local authority. The claimant brought a claim for damages in nuisance and negligence and an injunction against the local authority in respect of the second defendant's behaviour which allegedly diminished her enjoyment of and the value in the property. It was held that it was well established that a local authority as landlord would only be liable for nuisance by its tenant if it expressly or implied authorised the nuisance; that in particular, a landlord would be liable either if it let property in circumstances when nuisance was certain to result from the purposes for which the property was let, since by implication it had authorised that nuisance, or if, having let the property in other circumstances, the landlord then gave implied or express authorisation for nuisance caused by the occupier; but otherwise the law had not moved on to admit of any other circumstances in which a landlord would be held liable; that as the local authority had not authorised the nuisance caused by the claimant's neighbour, the claimant had no remedy in nuisance against the local authority, but that she was not deprived at pursuing other remedies to protect her rights to privacy and family life and home to which the local authority as a public authority was obliged to give effect, and she could seek judicial review of the local authorities decision not to seek possession of the neighbour's flat. At para.19 Sir Christopher Staughton considered the question of negligence and said:

At paragraph 22 he continued:

[49] In my opinion these authorities are persuasive in support of the contention that a duty of care does not arise in the present case. Although in some of the earlier cases some of the dicta are couched in terms of limitation or exclusion of a claim in negligence, it is clear that in Mowan the court addressed that issue in the light of the Convention jurisprudence and pointed out that Mrs Mowan was not owed a duty of care by the council. It was not a question of her having a cause and being excluded from enforcing it. I shall return to this approach later when considering the impact of the Convention cases. Meantime, from this train of persuasive English authorities I form a provisional view that the pursuers in the present case are not owed a duty of care by the defenders.

[50] Counsel for the pursuers drew support for the proposition that a duty of care could exist from one Scottish case based on nuisance. In Fleming v Gemmill 1907 S.C. 340 the proprietors of a block of workmen's cottages erected for the use of their tenants earth closets, and made drains, which were only intended to receive water from washhouses and sinks, but which were used by the occupants of the houses as a receptacle for sewage, with the result that a stream which flowed through an adjoining farm, and into which the drains discharged, was polluted, and injury was caused to the cattle which watered at the stream. In defence to an action of interdict and damages directed against the proprietors of the houses, the defenders pleaded that they had provided an effective drainage system, and were not responsible for pollution due to an improper use thereof by their tenants. It was held that the improper use of the drains might have been anticipated, and that as the proprietors had laid the drains in such a way that pollution was a probable result, they were responsible therefore. At p.349 the Lord President said:

[51] Counsel for the pursuers also prayed in aid the case of Chartered Trust plc v Davis [1997] 2 EGLR 83. In December 1988 the defendant tenant was granted a lease of a shop in a shopping mall owned by a common landlord. In January 1992 an adjoining unit was let to a pawnbroker. The pawnbroker attracted customers who had little money to spend in the other shops and had to wait outside in that part of the shopping mall outside the defenders' shop. A pawnbroker's sign was erected in this part of the mall and the light to the mall was restricted by the pawnbroker's windows being obstructed, all of which deterred passing trade. In August 1993 the defendant withheld rent to the landlords and disclaimed the lease. The defendant contended that the landlords had derogated from their grant by failing to control the nuisance caused by the pawnbroker. The claim of the plaintiffs, the mortgagees in possession, for arrears of rent and an order to comply with a keep open covenant, was dismissed in the court below and their appeal was dismissed. It was held that where a landlord grants leases in a shopping mall, over which he maintains control and recovers a service charge, it is no answer to say that a tenant's sole protection against a nuisance caused by another tenant is his own ability and willingness to bring his own individual action. Litigation is too expensive, too uncertain and offers no proper protection against trespassing and threatening members of the public. A duty should lie with the landlords. The landlords' failure to prevent nuisance by the pawnbroker could have been down either directly under the lease, enforcing the covenant against nuisance, or by making rules ensuring the mall passageway was kept clear. The landlords chose to do nothing and thereby made the premises materially less fit for the purpose for which they were let. The landlords had derogated from their grant and the trial judge was entitled to find repudiation of the lease.

[52] Both these decisions were in actions based on nuisance and are therefore of limited assistance. Each of them turns very much upon its own facts. In Mowan it was held that it was well established that a local authority as landlords would only be liable in nuisance by its tenant if it expressly or impliedly authorised the nuisance. In Hussain Hirst LJ referring to Chartered Trust plc said this at page 24E:

Accordingly, I do not find either of these cases to be of assistance.

[53] I turn now to consider the questions of forseeability, proximity and whether it would be fair, justice and reasonable that the law should impose a duty of care in the circumstances of the present case.

[54] I am satisfied that in this case the requirement of proximity is satisfied. The deceased was a tenant of the defenders and lived next door to James Drummond who was also a tenant of the defenders. The deceased had frequently complained to the defenders about the conduct of James Drummond.

[55] The question of foreseeability arises in this case in the context in which human action is one of the links in the chain of causation. In Home Office v Dorset Yacht Company [1970] AC 1004 Lord Reid at page 1027-1030 dealt with the question of foreseeability in this context. After referring to a number of cases he said at page 1030:

I was also referred to to a passage in the speech of Lord Mackay of Clashfern in Smith v Littlewoods [1987] AC 241 at page 261:

[56] Without hearing evidence I am unable to say at this stage whether the pursuers can demonstrate that the needle described by Lord Mackay of Clashfern could rise sufficiently such that the defenders ought to have foreseen that James Drummond would go and kill the deceased. I have come to the conclusion that it would not be possible for me to form a concluded view on the question of forseeability on the basis of the pleadings. Accordingly, had the question of forseeability been the only live issue I would have allowed a proof before answer.

[57] In assessing whether it would be fair, just and reasonable to impose a duty of care on the defenders I recognise that both the statutory provisions of the 1987 Act and the terms of the lease between the defenders and James Drummond had in contemplation the possibility of recovery of possession of the tenant's house. It might therefore be expected that in circumstances such as those averred by the pursuers, namely, that James Drummond was a danger to the deceased and other residents, the process of recovery would be put into operation. Indeed, it appears that in 2001 the process was in the contemplation of the defenders.

[58] However, the imposition of a duty of care on the defenders towards the pursuers to have recovered possession by at least the end of 1999 and to warn the deceased of the steps being taken in 2001 would, in my opinion, have potentially far-reaching consequences. The potential for claims against local authorities such as the defenders, particularly in the areas where there is a relatively high crime rate or level of antisocial behaviour seems to me to be considerable. This could lead to significant diversion of resources. It could also lead to difficulties involving a variety of agencies. For example, the housing department of the defenders might in a particular case be over zealous in seeking recovery of possession thereby placing additional strains on the social services department. In my opinion Mr Dunlop was correct to submit that the imposition of such a duty of care would be likely to interfere with the local authority's ability to carry out its functions under the 1987 Act.

[59] It was recognised in O'Leary that, if the principle applied to a local authority, it would also apply to a private landlord. Thus, there would potentially far reaching implications in relation to business as well as to residential premises. Furthermore, as was pointed out in Hussain there would be a danger that scarce resources of the local authority would, in part, be diverted to defending such actions in the courts.

[60] I also bear it mind that the pursuers are not without any remedy. It would have been open to them to raise an action against James Drummond. While such an action might not have been of much comfort to them it would, in addition, be open to them to make a claim to the Criminal Injuries Compensation Authority.

[61] I conclude that in the circumstances of this case it would not be fair, just and reasonable to impose a duty of care on the defenders.

[62] The next matter to explore is the extent to which the jurisprudence of the European Court of Human Rights has an impact on matters raised in this case. In my opinion the Convention cases do have a bearing on two issues. These are, first, the question of whether in circumstances of this case the defenders owed a duty of care to the pursuers, and, second, whether in the circumstances of this case it is open me to dismiss the action without any examination of the facts in a proof before answer.

[63] In Article 14 of condesendence the pursuers aver:

Article 2 of the Convention is in the following terms:

[64] The starting point in identifying the nature of the obligation on a public authority with respect to criminal acts committed by a third party is the case of Osman v The United Kingdom [1998] 29 EHRR 245. In Osman the applicants were Mrs Mulkiye Osman, whose husband Ali had been shot dead by Paul Paget-Lewis, and her son Ahmet who was wounded in the same shooting. They raised an action against the police. The Court of Appeal, following the decision in Hill v Chief Constable of West Yorkshire [1989] AC 53, dismissed the claim. The family took the case to the European Court of Human Rights. At page 305 in paragraph 115 dealing with the general principle of the obligation on the authorities the Court said:

The Court went on in the next paragraph to recognise that such an obligation is limited and to set out the appropriate test:

It was the Opinion of the Court that where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above mentioned duty to prevent and suppress offences against the person, it must be established to the satisfaction of the Court that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The test was expressed thus:

In Osman the Court concluded that the applicants had failed to satisfy that test. At page 308, paragraph 121, the Court said:

[65] However, at paragraphs 150 - 152 the Court found that the Court of Appeal had applied an exclusionary rule so as to confer a blanket immunity on the police for their acts and omissions during the investigation and suppression of crime. This, in the opinion of the Court, amounted to an unjustifiable restriction on an applicant's right to have a determination on the merits of her case. In Barrett v Enfield London Borough Council [2001] 2 AC 550 the view expressed in Osman at paragraphs 150 - 152 was the subject of some criticism in the House of Lords (see the speech of Lord Browne-Wilkinson at pages 558-559). The European Court of Human Rights returned to the question of immunity or exclusion in Z and others v The United Kingdom [2002] 34 EHRR 97 at paragraph 100:

[66] Z arose out of the same circumstances as X (Minors) v Bedfordshire County Council (supra). It raised a question under Article 3, the prohibition of torture. In this case the applicants were all the siblings who had suffered abuse and neglect at the hands of their parents. Relying on Articles 3, 6, 8 and 13 the applicants complained of the failure by the local authority to take adequate protective measures in respect of the severe neglect and abuse which they were known to be suffering due to their ill-treatment by their parents. The applicants further complained that their claim in the domestic courts against the local authority was struck out as disclosing no cause of action against the local authority because the domestic law did not impose an actionable duty of care. Consequently the applicants claimed that they had no access to court or to an effective remedy in respect of this. The court unanimously held that there had been a violation of Article 3 of the Convention; unanimously held that no separate issue arose under Article 8 of the Convention (the right to respect for private and family life); by 12 votes to 5 that there had been no violation of Article 6 of the Convention; by 15 votes to 2 that there had been a violation of Article 13 of the Convention (the right to an effective remedy). At paragraph 73 at p.131 of the judgment the Court set out the general obligation on the State in terms of Article 3:

[67] In relation to the question of striking out and the requirement for an investigation at paragraph 102 the Court said:

In paragraph 109 the Court outlined the requirement for an investigation to satisfy the right under article of the Convention to an effective remedy. Where the right to life was in issue, the authorities were required to conduct a thorough and effective investigation capable of leading to the identification of those responsible, and including effective access for the complainant to the investigation procedure. In cases where the allegation was that the authorities failed to protect persons from the acts of others, (a) it was not always required that authorities undertook responsibility for investigating the allegations, but (b) there should be available to the deceased's family a mechanism for establishing any liability of State bodies for acts or omissions involving breach of rights under the Convention.

[68] R (Amin) v Secretary of State for the Home Department 2004 1 AC 653 was a judicial review of the refusal by the Secretary of State of the family's request for a public inquiry into the death on the grounds that such an inquiry would add nothing of substance and would not be in a public interest. The deceased, while serving a custodial sentence in a Young Offenders Institution, was murdered by his cell mate who had a history of violent and racist behaviour. It was held that the State's duty to secure the right to life guaranteed by Article 2 required it, in particular, to take steps to protect the lives of those involuntarily in its custody from the criminal acts of others, and, where death occurred the State's procedural obligation to carry out an effective investigation of the circumstances required, whatever mode of enquiry was adopted, as a minimum standard of review, sufficient public scrutiny to secure accountability and an appropriate level of participation by the next of kin to safeguard their legitimate interests; that, having regard to the absence of an inquest and since none of the investigations which were undertaken satisfied the minimum threshold, the State's procedural duty under Article 2 had not been discharged. However, Lord Hope of Craighead noted at paragraph 60 that a Fatal Accident Inquiry held in Scotland under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 would have satisfied the procedural obligation imposed on the UK by article 2 of the Convention.

[69] I return to the case of Mowan v Wandsworth London Borough Council. Both the question of the nature of the obligation and the question of striking out without a hearing were addressed:

[70] The decision of the House of Lords in Brooks v Commissioner of Police for the Metropolis [2005] UKHL 24 was issued when the present case was at avizandum. I did not consider it necessary to invite counsel to make submissions on it. I simply note that at paragraph 27 Lord Steyn said:

[71] From a review of these cases I draw the following conclusions. Article 2 of the Convention enjoins the State to take appropriate steps to safeguard the lives of those within its jurisdiction. That may imply a positive obligation to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another. That obligation is not to impose an impossible or disproportionate burden on the authorities. The test to be applied is whether the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of the deceased from the criminal acts of the third party; and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (Osman 115; 116).

[72] The question whether an exclusionary rule has been applied must be considered in the light of the various dicta in the decisions in Osman v The United Kingdom [1998] 29 EHRR 245; Z and others v The United Kingdom [2002] 34 EHRR 97; Barrett v Enfield London Borough Council [2001] 2 AC 550; Mowan v Wandsworth London Borough Council [2001] L.R.G. 228; and Brooks v Commissioner of Police for the Metropolis [2005] UKHL 24 In my opinion where it is shown by the application of the fair, just and reasonable test that no duty of care existed in particular circumstances, that does not mean that an exclusionary principle has been applied.

[73] The State's duty to investigate is secondary to the duty to protect life. Where a person has died and it is arguable that there has been a breach of Article 2 the investigation held under the duty to investigate should have the following general features: it must be independent; be effective; be held reasonably promptly; there must be an element of public scrutiny; the next of kin must be involved to an appropriate extent. A Scottish Fatal Accident Inquiry would satisfy the procedural obligation imposed on the UK by article 2 of the Convention.

[74] I have already concluded that the imposition of a duty of care on the defenders towards the pursuers to have recovered possession by at least the end of 1999 and to warn the deceased of the steps being taken in 2001 would not be fair, just or reasonable. Having considered the obligations on the defenders as a public authority under the Convention, I am of the view that there is nothing in the Convention jurisprudence which requires me to depart from that conclusion. The pursuers' case under the Convention, as set out in article 14 of condescendence, is limited to a failure in the duty to advise the deceased that the meeting on 31 July was going to take place and of the events of the meeting. In my opinion the pursuers have failed to set out in their averments any basis for saying that prior to the meeting the defenders knew or ought to have known of the existence of a real and immediate risk to the life of the deceased. In article 9 of condescendence the pursuers themselves aver that at the meeting James Drummond lost his temper and then apologised for doing so. Again, there does not seem to me to be any basis set out for saying that when James Drummond left the meeting, the defenders knew or ought to have known of the existence of a real and immediate risk to the life of the deceased.

[75] I am of the opinion that it would not be a sound reason to order a proof before answer simply in order to allow an investigation of the death of the deceased. The appropriate vehicle for that would have been a Fatal Accident Inquiry. I do not know whether one was held. I do not know whether the usual practice was followed of the Lord Advocate seeking the views of the relatives of a deceased as to their desire for an Inquiry. I do not read Barrett v Enfield London Borough Council [2001] 2 AC 550 as holding that under English procedure no case may be struck out. I am bound by the decision in Jamieson v Jamieson 1952 S.C. (H.L.) 44. In the context of an action for reparation raised under our system of written pleadings, it remains the case that the test in Jamieson v Jamieson applies. In the well known passage in the speech of Lord Normand at p. 50 it is put thus:

Mr Smith referred me to the following passage in the speech of Lord Reid at p. 63:

[76] Applying the test in Jamieson v Jamieson to the present case I conclude that the pursuers must fail and accordingly, I uphold the first plea-in-law for the defenders and dismiss the action. I shall reserve the question of expenses meantime.