Chapter 4

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Mitchell v Glasgow City Council [2009] UKHL 11

The reluctance of the courts to impose a duty for an omission, particularly when the defendant is a public body, was reinforced in this Scottish appeal to the House of Lords. The case was brought on behalf of the tenant of a flat in social housing provided by Glasgow City Council. He had been killed by a fellow tenant, X, following a long campaign of threats and intimidation by X. This culminated in a meeting between X and the local authority housing managers who told him he was to be evicted, whereupon he lost his temper and returned to the flats to commit the murder. The action was brought on the basis of the defendants’ alleged breach of a duty to warn the deceased, both under common law negligence and contrary to his right to life under art. 2 ECHR.

The House of Lords unanimously upheld the decision by the lower courts that there was no duty of care in this case, nor had there been a breach of art. 2. Smith v Littlewoods provided authority that when the question concerned the duty of one party to protect another from the wrong-doing of a third party, then more than mere foreseeability is required. It is necessary that there be the additional element of a relationship of responsibility which for policy reasons justifies the imposition of a duty of care for what is essentially an omission. Applying the Caparo test of whether such imposition would be ‘fair, just and reasonable’, the Law Lords concluded that the extensive burden on social landlords dealing with anti-social behaviour would be too onerous to justify a duty. Further, they were not persuaded that there had been enough evidence of a ‘real and immediate’ risk to life for the defendants to be found to have breached the art. 2 right to life.

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Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74

After having been detained under the compulsory provisions of the Mental Health Act 1983, the mother of the claimant absconded from the defendants’ care and later committed suicide. The daughter did not have locus standi to bring an action in negligence (which would have necessitated considering this issue in terms of duty of care). Instead she pursued compensation in an action under s.7 HRA 1998, alleging that the defendants had failed to take appropriate steps to protect her mother’s right to life under art.2(1) ECHR.
Relying in part upon the European Court decision in Osman v United Kingdom (1998) 29 EHRR 245, the House of Lords found that there was an ‘overarching obligation’ upon hospitals to take positive steps to protect the lives of patients such the deceased. Standards of care under both art .2(1) and ordinary negligence must take into account all the circumstances of the case, and here limitation of resources would inevitably be relevant.

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Smith v CC Sussex Police [2008] EWCA Civ 39

The claimant was attacked and seriously injured by a former partner. Two weeks prior to the attack, he had notified Brighton police that the partner had been making violent threats towards him. Although the police had begun to investigate, the claimant alleged that the police had been negligent in not taking firm action, and that he suffered as a consequence. An action for breach of the state’s positive duty to protect life under article 2 of the European Convention on Human Rights was impossible due to the one-year limitation period for such actions.

The judge at first instance agreed to strike out the common law negligence action, due to the cases of Hill v Chief Constable of West Yorkshire and Brooks v Metropolitan Police Commissioner. However the Court of Appeal did not agree that the action had no real prospect of success and allowed the appeal, so that the action could go to trial. It was suggested that the policy reasons behind the decision in Hill needed revisiting, particularly given the high degree of proximity between the police and the complainant in this case. An important factor in the Appeal Court's decision was success of the human rights action regarding witness safety on Van Colle. The impact of the ECHR's positive duties upon the development of common law negligence required consideration - especially in the light of the current state of affairs, whereby it appeared that different outcomes could be determined arbitrarily on the basis of limitation periods.

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Chief Constable of Hertfordshire Police v Van Colle; Smith v Chief Constable of Sussex Police [2008] UKHL 50

The two cases in this joint appeal concerned the question of what sort of redress is available when the police fail to take action regarding a threat of violence, which then results in injury or death.

In Van Colle violence was threatened against a witness to crime, who was eventually murdered. No claim was made in common law negligence in view of the precedents of Hill and Brook, however a first instance decision, which was upheld by the Court of Appeal, awarded damages for violation of article 2 of the European Convention. In Smith, the claimant had been seriously injured by a former partner whose threats to him had been reported to the police. His negligence action against the police was struck out at first instance but restored and remitted for trial on appeal.

The House of Lords thus was obliged to consider police liability under both the common law and the 1998 Act. In Van Colle, the appeal by the police was allowed. The court agreed with the Strasbourg decision in Osman v UK (1998) that in certain circumstances, article 2 could be violated by the police in failing to protect an individual from a known ‘real and immediate risk to…life’, it was decided that the threshold in Osman had not been reached in this case. The threshold of liability was not reached because a police officer making a ‘reasonable and informed decision on the facts known to him at the time’ would not have apprehended the violence which occurred. The Smith case allowed the Lords to review the evolution of the common law in this area since Hill v Chief Constable of West Yorkshire (1989). A majority continued to support the policy approach of that case, as reinforced in Brooks (1995), asserting the detrimental effects of defensive policing should a duty be established. Lord Bingham strongly dissented and argued for a duty of care in circumstances such as these, on the basis that close proximity created an assumption of responsibility. Limits to be drawn around liability could occur then at the ‘breach stage’. The House of Lords did not decide on the applicability of art. 2 to Smith, and in the short term that could provide a way forward in such cases.

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Chapter 4