Facts:
The pursuers were the widow and daughter of Mr Mitchell (M) who had been killed by his next-door neighbour Drummond (D).  M and D were neighbours and tenants of the local authority. One night M banged on D’s wall to get his loud music turned down. D retaliated by smashing M’s windows as a result of which he was arrested by the police. D then adopted an attitude of hostility to M making repeated threats to kill him, despite the pursuers’ warning that if he persisted in this conduct they would take action to recover possession of his house. In 2001, the local authority invited D to attend a meeting to discuss a recent incident involving him. D attended the meeting and was told that a fresh notice of proceedings to recover possession would be served on him. D became abusive during the meeting; back home he fatally assaulted M. The pursuers claimed a breach of duty of care in negligence and under Article 2 of the Convention, pleading that the local authority had a duty in negligence and under Article 2 to warn M of the risk that he could face after the meeting on July 31 and a duty to take the steps against D.

The lower court dismissed the action. On appeal the court allowed a proof before answer on the pursuers’ case at common law and excluded from probation their averments that the local authority had acted incompatibly with Article 2 of the European Convention on Human Rights 1950. The pursuers cross-appealed against such exclusion. The local authority appealed to the House of Lords to dismiss the cross-appeal: the appeal was allowed and the cross-appeal dismissed.

Common law claim:
The pursuers had claimed that there had been an operational failure by the Council to warn M in circumstances where it was reasonably foreseeable that harm would flow to him if they did not warn him about their meeting with D. The Law Lords held that foreseeability of harm was not in itself sufficient to establish a claim in negligence. There needed to be a sufficient relationship between the Council and M such that in the circumstances it was fair, just and reasonable to impose a duty of care on the Council.

The issue before the Court was whether, given that the Council were M’s and D’s landlords, their relationship was such that it was fair, just and reasonable that they should be held liable in damages for an omission to warn. Another issue was whether the causative link between the meeting and the fatal assault was sufficient to cast upon the Council a delictual duty of care to take steps to protect M.

The Court held that the Council’s obligation to M was to act as a responsible landlord and to take steps to terminate D’s tenancy in order to remove him from the locality where he was causing trouble and that that obligation did not justify treating the Council as having assumed responsibility for M’s safety. There was consequently no sufficient causal link between the Council’s omission and M’s murder.

The Law Lords moreover emphasized the complex and far-reaching implications of imposing a duty to warn on the Council. It might deter social landlords from intervening to reduce the incidence of antisocial behaviour.

Article 2 claim:
The issue before the Court was whether the local authority ought to have known that, when D left the meeting, there was a “real and immediate risk” to M’s life (Osman v United Kingdom (23452/94) (1999) 1 FLR 193 ECHR).

The Law Lords held that, even accepting the pursuers’ averments on this point without further proof, nothing showed that M’s life was at real risk or at immediate risk. The real and immediate threat to M’s life occurred about an hour after the meeting, when no Council officials were present or were under any duty to be present.

Moreover the Council, being only M’s landlords, had not assumed responsibility for M by taking him into custody, imprisoning him or constraining his liberty by other means. As landlords, the Council had fulfilled their duties by taking steps towards exercising their statutory power to recover possession of Drummond’s house. The public authority with the positive duty to protect M from criminal assaults by D was the Police, not the Council.

Comment:
This case is an unsuccessful attempt by the pursuers to persuade the Courts to impose liability on public authorities for an operational failure to prevent harm. The cautious approach taken by the Law Lords shows that such liability to take steps is far from being imposed, at least in so far as the Council, and not the local police is concerned. Neither the Human Rights Act 1998 nor the flow of litigation inspired by Osman v UK have modified the general common law rule that no liability can be imposed for an omission. There is nonetheless some force in the pursuers’ claim in that the Council was not merely guilty of omission, instead it took the positive step to convey the meeting and in those circumstances it is clear that it is what the Council officials told D which led on to his assault on M. The Law Lords continue to justify through the floodgates argument that allowing such a claim to succeed would only inhibit the Council’s ability to carry out their duties as a landlord. So it seems that for now the imposition of a duty of care for operational decisions is to be decided cautiously, case by case.