Case Analysis: Mitchell V Glasgow City Council [2009] Ukhl 11; [2009]

Topics: Duty of care, Caparo Industries plc v Dickman, Tort Pages: 6 (2272 words) Published: January 13, 2013
Case analysis: Mitchell v Glasgow City Council [2009] UKHL 11; [2009] AC 874; AER 205 The claimant of this case was the widow and daughter of Mr Drummond. They brought a claim against the council for damages in negligence, the essential legal complaint was that the local authority had failed to warn the deceased about the meeting before, and that they acted in a way that was incompatible with his right to life, under Article 2 of the European Convention on Human Rights. The Court of Session (Scotland’s equivalent to the High Court) at first dismissed the case in 2005, but in 2008 the court allowed the hearing of the case, also known as “proof before hearing”.Unanimously the Lords allowed the local authority’s appeal and dismissed the cross-appeal. The bench included Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Rodger of Earlsferry, Baroness Hale of Richmand, Lord Brown of Eaton under Heywood and Lord Scott of Foscote. All five judges’ judgements were different from each other, with no disagreements. The House of Lords in this case ruled that the duty of care owed by landlords to their tenants does not include a duty to warn or otherwise protect against wrongful acts by other tenants. There have been previous attempts to impose liability on landlords for wrongful acts of tenants, but these have been dismissed without inquiry. This can be seen in Smith v Scott and Hussain v Lancaster City Council. Mr EcEachram said that it was unclear whether the threefold test was part of the law of Scotland, at least in cases where damages were claimed for personal injury, however Smith v Chief Constable of Sussex Police and Van Colle v Chief Constable of the Hertfordshire Police,provides an example of its application in cases of personal injury.The House of Lords were concerned with the implication of landlords and of others in such circumstances, reviewing and applying the three stage test the judges unanimously found that the council had no duty. The case Caparo industries v Dickman established the three part test, set out by Lord Bridge, to be used to decide whether a duty of care exists in situations where there is no precedent. It must be demonstrated that: it was reasonably foreseeable that a person in the claimant’s position would be injured, there was sufficient proximity between the parties and it is fair, just and reasonable to impose liability on the defendant. Foreseeability of harm is not itself enough for the imposition of a duty of care it appears. Even though foreseeability and proximity may exist, the duty of care will not be on the defendant unless it is fair, just and reasonable. This can be seen in the case of Dorset Yacht Co ltd v Home Office. Also Lord Goff of Chieveley explained in Smith v Littlewoods organisation ltd, that law does not normally impose positive duty on a person to protect others. In addition the law does not impose a duty to prevent a person from being harmed by criminal act of third party based upon foreseeability. According to this statement by Lord Goff the failure to act by the council does not impose liability on the council for the criminal act of the third party. The Council had accepted that they had responsibility for the situation that arouse, the only question was whether harm, in the circumstances of the case, to the deceased was reasonably foreseeable as a result of the actions which they were taking. Lord Goff addressed that “there is at present no general duty at common law to prevent persons from harming others by their deliberate wrongdoing, however foreseeable such harm may be if the defendant does not take steps to prevent it” in the case of Smith v Littlewoods Organisation Ltd. This implies that even if the act of the third party was so foreseeable the council does not need to prevent the situation from occurring. In the case of Gorringe v Calderdale Metropolitan Borough Council it was stated that “reasonable foreseeability was insufficient to justify the...
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