|Judgments - Mitchell (AP) and another (Original Respondents and Cross-appellants) v Glasgow City Council (Original Appellant and Cross-respondents) (Scotland)
HOUSE OF LORDS
 UKHL 11
on appeal from:  CSIH 19
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Mitchell (AP) and another (Original Respondents and Cross-appellants) v Glasgow City Council (Original Appellants and Cross-respondents) (Scotland)
Lord Hope of Craighead
Lord Scott of Foscote
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Andrew Smith QC
(Instructed by Lewis Silkin as London Agents for Council Solicitor, City of Edinburgh Council)
Colin McEachran QC
(Instructed by Drummond Miller LLP)
Interveners (Housing Associations)
(Instructed by McClure Naismith LLP)
1 and 2 DECEMBER 2008
WEDNESDAY 18 FEBRUARY 2009
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Mitchell (AP) and another (AP) (Original Respondents and Cross-appellants) v Glasgow City Council (Original Appellants and Cross-respondents) (Scotland)
 UKHL 11
LORD HOPE OF CRAIGHEAD
The averments of fault
The issue on the pleadings
The case at common law
"I wish to emphasise that I do not think that the problem in these cases can be solved simply through the mechanism of foreseeability. When a duty is cast upon a person to take precautions against the wrongdoing of third parties, the ordinary standard of foreseeability applies; and so the possibility of such wrongdoing does not have to be very great before liability is imposed .Per contra, 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 defender does not take steps to prevent it."
In Gorringe v Calderdale Metropolitan Borough Council  UKHL 15;  1 WLR 1057, para 17 Lord Hoffmann endorsed these remarks when he said that reasonable foreseeability was insufficient to justify the imposition of liability upon someone who simply does nothing: who neither creates a risk nor undertakes to do anything to avert it. Mr McEachran said that Lord Goff's observations in Smith v Littlewoods Organisation Ltd should not be followed, as his approach was not that of the majority. In any event, he said, the issue in this case was simply one of the foreseeability of harm to the deceased if no warning was given. There was already a relationship of proximity.
Fair, just and reasonable
The case under the 1998 Act
"For the court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising."
It defined the circumstances in which the obligation arises later in the same paragraph:
"it must be established to [the court's] satisfaction 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."
LORD SCOTT OF FOSCOTE
" take reasonable care to avoid acts or omissions which you can reasonably forsee would be likely to injure your neighbour" (emphasis added).
Yet 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.
"The activity of the defendant in providing the boat for fishing purposes was beyond question potentially noxious to the crew, and when this situation crystallised and the defendant heard of engine failure and the boat's distress a legal duty . arose to act with the means at its disposal."
LORD RODGER OF EARLSFERRY
"Another statement of principle, which has been much quoted, is the observation of Lord Sumner in Weld-Blundell v Stephens  AC 956, when he said, at p 986: 'In general even though A is in fault, he is not responsible for injury to C which B, a stranger to him, deliberately chooses to do.' This dictum may be read as expressing the general idea that the voluntary act of another, independent of the defender's fault, is regarded as a novus actus interveniens which, to use the old metaphor, 'breaks the chain of causation.' But it also expresses a general perception that we ought not to be held responsible in law for the deliberate wrongdoing of others. Of course, if a duty of care is imposed to guard against deliberate wrongdoing by others, it can hardly be said that the harmful effects of such wrongdoing are not caused by such breach of duty. We are therefore thrown back to the duty of care. But one thing is clear, and that is that liability in negligence for harm caused by the deliberate wrongdoing of others cannot be founded simply upon foreseeability that the pursuer will suffer loss or damage by reason of such wrongdoing. There is no such general principle. We have therefore to identify the circumstances in which such liability may be imposed."
Lord Goff went on, at p 83, to reject the idea that the problem in that case could be solved simply through the mechanism of foreseeability. Like Lord Hope, I respectfully agree with the reasons Lord Goff gave for rejecting Lord Mackay of Clashfern's approach, based on how foreseeable the unlawful conduct of the third party might be. In the final paragraph of his speech, at p 84, Lord Goff observed:
"It is very tempting to try to solve all problems of negligence by reference to an all-embracing criterion of foreseeability, thereby effectively reducing all decisions in this field to questions of fact. But this comfortable solution is, alas, not open to us. The law has to accommodate all the untidy complexity of life; and there are circumstances where considerations of practical justice impel us to reject a general imposition of liability for foreseeable damage . In truth, in cases such as these, having rejected the generalised principle, we have to search for special cases in which, upon narrower but still identifiable principles, liability can properly be imposed."
The House has to decide whether, in this case, there is some identifiable principle, narrower than the mere foreseeability of harm to Mr Mitchell, upon which liability can properly be imposed on the Council.
"effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions."
In Scotland there are, of course, criminal laws to deter the commission of offences against the person, police forces to prevent such crimes and to detect wrongdoers, and courts to impose penalties. In this way the United Kingdom complies with its basic positive obligation under article 2 with respect to people in Scotland.
BARONESS HALE OF RICHMOND
LORD BROWN OF EATON-UNDER-HEYWOOD