Are landlords liable for killings committed by their tenants?

The background to Mitchell v Glasgow City Council [2009] UKHL 11 is particularly tragic.  The late James Dow Mitchell was attacked with a stick or iron bar on 31st July 2001 and died as a result of his injuries on 10th August.  His attacker was his neighbour and fellow Glasgow City Council tenant, James Drummond.  Drummond was convicted of culpable homicide. 

Mr Drummond had a lengthy history of anti-social and violent and threatening behaviour – much directed against Mr Mitchell.  Lord Hope narrates,

"Drummond was given the tenancy of 225 Bellahouston Drive in May 1985. He moved there from Middleton Street, where he had behaved in an anti-social manner and attacked his neighbours with a tyre lever. The deceased became the tenant of the property next door at 221 Bellahouston Drive in March 1986. … In December 1994 there was an incident in the early hours of the morning. Drummond had been playing loud music which woke up the deceased. He banged on the wall to get it turned down. Drummond retaliated by banging on his wall and shouting abuse. A few minutes later he arrived at the deceased’s door armed with an iron bar. He used it to batter the deceased’s door and smash his windows. The police were called and Drummond was arrested. He shouted that he would kill the deceased when he got out of jail. A few days later, having been released on bail, he followed the deceased home shouting abuse. He told him that he would be dead meat after the court case. … In March 1995 the defenders warned Drummond that if he persisted in this conduct they would take action to recover possession of his house.

"Despite this warning Drummond continued to threaten to kill the deceased at least once a month. He was removed by the police in handcuffs on many occasions and intimidated elderly residents. The deceased and his family consulted city councillors and a member of the Scottish Parliament, who wrote to the defenders about the abuse which the deceased was suffering. Victim Support also wrote to the defenders in August 1999 about other residents’ fears of retaliation by Drummond if they gave evidence against him. They were however provided with a signed statement by a local resident confirming that she had heard Drummond threaten to kill the deceased on many occasions. In January 2001 an incident was recorded on video tape showing Drummond’s behaviour towards the deceased which resulted in his being charged with a breach of the peace. The defenders warned him again that he might be evicted if his behaviour did not improve." (paras [3] and [4])

The behaviour continued and eventually Drummond was served with a notice of proceedings for recovery of possession.  This action merely led to more abuse by Drummond and he was arrested and charged with breach of the peace.  Mr Drummond was then called to a meeting with the Council.

"Drummond attended the meeting on 31 July 2001, which began at 2pm. The defenders told him that a fresh notice of proceedings to recover possession would be served on him. They said that they would continue to monitor complaints about his behaviour. They told him that continued anti-social behaviour could result in his eviction. Drummond lost his temper and became abusive. He then apologised to the defenders’ staff for having lost his temper. After leaving the meeting Drummond returned to Bellahouston Drive. At about 3pm he assaulted the deceased and inflicted the injuries which caused his death." (para [6])

Although the Mitchells had been kept advised of the council actions over the years the council did not tell Mr Mitchell or the police about the meeting in July. Mr Mitchell's widow and daughter sued the council for damages based on claims: in negligence at common law; and that the council had acted in a manner incompatible with Article 2 of the European Convention on Human Rights.  They argued that if Mr Mitchell "had been given these warnings the deceased would not have died. He would have been alerted to the fact that Drummond was likely to be angry and violent. He would have been on the look out and taken steps to avoid him." (para [7])

At first instance [2005] CSOH 84 the Lord Ordinary (Bracadale) dismissed the case.  On appeal an Extra Division [2008] CSIH 19 held by majority that there could be a proof before answer on the common law case but rejected (by majority) a proof before answer on the ECHR case.  The Council appealed to the House of Lords, the Mitchells cross-appealing on the ECHR issue.

The case has been unanimously dismissed by the Lords – the bench comprising Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood.  Each judge delivered a substantive speech and clarification is given on the approach to determing when there is liability in negligence in difficult cases in Scots law.

The Mitchells argued that there was a duty to warn the Mitchells, and the duty arose because harm was reasonably foreseeable.

A test based on simple reasonable foreseeability to establish a duty of care is rejected by the Lords.  Lord Hope relies on Lord Goff's speech in Smith v Littlewoods Organisation Ltd 1987 SC (HL) 37 (rejecting the approach of Lord Mackay of Clashfern in that case) that reasonable foresseability alone is not sufficient to impose a duty of care.  He then endorses in a Scottish context the current approach by the Lords in England that a duty of care arises whereby "it must be shown that harm to B was a reasonably foreseeable consequence of what A did or failed to do, that the relationship was one of sufficient proximity, and that in all the circumstances it is fair, just and reasonable to impose a duty of care towards B" (para [21] approving Van Colle v Chief Constable of the Hertfordshire Police [2008] UKHL 50; [2008] 3 WLR 593, per Lord Bingham of Cornhill at para 42.  Such an approach had been criticised by counsel for the Mitchells because "the only case … in support was Forbes v City of Dundee District Council 1997 SLT 1330, where the point had been conceded, and in the Inner House in British Telecommunications plc v James Thomson & Sons (Engineers) Ltd 1997 SC 59 Lord Morison, in his dissenting opinion, had described the “fair, just and reasonable” test as uncertain and wide-ranging" (para [25]) although Lord Hope rejected the criticisms,

"[The test] was adopted without criticism by Lord Mackay of Clashfern when he spoke for the House in British Telecommunications plc v James Thomson & Sons (Engineers) Ltd 1999 SC (HL) 9, 12. It was applied by Lord Brodie in West v Castlehill LLP [2008] CSOH 182, para 23 in a situation where he would not have regarded an analysis based simply on foreseeability to be adequate. There is no principle of Scots law that contradicts it, and the fact that the law of liability for negligence has developed on common lines both north and south of the Border provides powerful support for the defenders’ argument that it should be applied in this case." (para [25])

and after application of the authorities to the Mitchells' case concludes,

"that it would not be fair, just or reasonable to hold that the defenders were under a duty to warn the deceased of the steps that they were taking, and that the common law case that is made against them is irrelevant. I would also hold, as a general rule, that a duty to warn another person that he is at risk of loss, injury or damage as the result of the criminal act of a third party will arise only where the person who is said to be under that duty has by his words or conduct assumed responsibility for the safety of the person who is at risk. " (para [29])

Lord Scott agreed – both analysing the case as an omission on the part of the Council that did not found liability.  As Lord Scott notes,

"it is accepted in both jurisdictions that the Pharisee who passed by the injured man on the other side of the road would not, by his failure to offer any assistance, have incurred any legal liability. A legal duty to take positive steps to prevent harm or injury to another requires the presence of some feature, additional to reasonable forseeability that a failure to do so is likely to result in the person in question suffering harm or injury. The Pharisee, both in England and Wales and in Scotland would have been in breach of no more than a moral obligation." (para [39])

Lord Rodger's speech has similarities to Lord Hope's.  He also approves Lord Goff's approach in Smith (referred to by Lord Rodger by the name by which the case is known to law students across Scotland, Maloco v Littlewoods Organisation 1987 SC (HL) 37) at para [56]) although he does not view the case as involving a mere omission.  He notes,

"the position of the Council is not exactly comparable to, say, someone watching and doing nothing as a child drowns in a shallow pool or a blind man walks into the path of an oncoming car. In such cases the observer plays no part in the events. Here, however, what the Council officials told Drummond undoubtedly led on to his assault on Mr Mitchell. According to the analysis and terminology of Hart and Honoré, Causation in the Law (2nd edition, 1985), pp 194-200, by telling Drummond at the meeting that the Council were going to issue a fresh notice of proceedings, the officials provided an opportunity for Drummond to assault Mr Mitchell. It might be preferable to say that what the officials did at the meeting provided a particular reason why, foreseeably, Drummond might choose to assault him. " (para [55])

Lord Rodger notes that the statutory power of the Council to remove an anti-social tenant under s 47 of the Housing (Scotland) Act 1987 and points out that there is no obligation to notify or warn other tenants of such actions.  He argues then that

"The presumption must be that both legislatures have proceeded on the basis that any possible criminal violence resulting from the operation of these powers is to be dealt with, in the usual way, by the police and criminal justice system. " (para [63])

and consequently it is not fair and reasonable to impose liability.

Lord Rodger's approach on the question of whether this case involved an omission is supported by Baroness Hale.

Lord Brown also agrees in the final decision and can be anticipated from the tenor of his opening remarks:

"Suppose a landlord knows his disruptive tenant to be in dispute with a neighbour. Suppose further that the neighbour complains and the landlord then threatens the tenant with eviction for causing nuisance and annoyance. Suppose finally that the tenant blames the neighbour for this and attacks him. Is the landlord to be held liable to the neighbour (or to his dependents if the attack proves fatal)? The answer must be the same whether the neighbour too is one of the landlord’s tenants or merely another resident in the area, and the same whether the landlord is a rich public authority or a poor private owner (so that this is not a case about the liability of public authorities). Does the landlord in these circumstances owe the neighbour a common law duty of care—a duty of care, that is, with regard to the neighbour’s safety from the tenant? Would that be fair, just and reasonable? More colloquially—but to my mind no less accurately—would this be a good idea?" (para [79])

While generally useful in clarifying the extent of the duty of care in the Scots law of negligence there are a few other noteworthy points. 

The case makes relatively extensive use of comparative authority.  As well as the Privy Council decision in Attorney General of the British Virgin Islands v Hartwell [2004] 1 WLR 1273 there are references to South African and American authorities. Lord Scott refers to Silva Fishing Corporation (Pty) Ltd v Maweza [1957 (2)] SA 256 (at paras [43] and [44]) and Lord Rodger to Bullock v Tamiami Trail Tours Inc (1959) 266 F 2d 326 at paras [59] – [60]).  From Lord Hope's speech (at para [23]) it appears both cases were discovered by their Lordships during private researches.

The second point is that while Lord Scott and Baroness Hale refer to Scottish authorities – Donoghue v Stevenson and Smith v Littlewoods Organisation Ltd in the case of Lord Scott, and Donoghue and  MacFarlane v Tayside Health Board (sic – and an error uncorrected on the House of Lords website to this day) in the case of Baroness Hale, both the English citations of [1932] AC 562, [1987] AC 241 and [2000] 2 AC 59 rather than the Session Cases references of 1932 SC (HL) 31, 1987 SC (HL) 37, and McFarlane at 2000 SC (HL) 1.  The interested reader is referred to WW McBryde, "The citation of cases in court" in Scots law into the 21st Century: essays in honour of W.A. Wilson (ed H L MAcQueen) pp 170 – 181.

The third point comes from the speech of Lord Brown.  He states

"There was some suggestion in argument that the test for liability was different (and more exacting) in England than in Scotland but that cannot be. That would be bizarre indeed, not least given that much of England’s negligence law was forged in Scottish appeals. " (para [80])

before proceeding to reach a decision without referring to any Scottish cases at all.  Comment seems superfluous.