Colleagues:

Maybe its just me, but I am not convinced that this is a case of

omissions as many of their Lordships claim, it is more like a

pseudo-nonfeasance case. I am also not sure why the calling of the

meeting with the violent tenant (a risk creating activity) could not

ground a duty to warn especially when the violent tenant had threatened

to kill the very person he later actually killed.  Conceptually it seems

closer to giving a gun to an unstable officer (/Attorney General of the

British Virgin Islands v Hartwell/ [2004] UKPC 12) than to the baby

drowning in the pool.

Sincerely,

Jason Neyers

Associate Professor of Law &

Cassels Brock LLP Faculty Fellow in Contract Law

Faculty of Law

University of Western Ontario

N6A 3K7

(519) 661-2111 x. 88435

Robert Stevens wrote:

> Mitchell v Glasgow City Council

>

> http://www.parliament.the-stationery-office.com/pa/ld200809/ldjudgmt/jd090218/mitche-1.htm

>

> A (Scottish) decision of the House of Lords re-affirming the absence of

> any general positive duty to aid others.

>

> One local authority tenant violently beats another tenant to death. He

> does this after having been written to and asked to meet the landlord to

> discuss an earlier incident, and a notice of repossession.

>

> The deceased's dependent bring a claim against the local authority

> claiming that if the deceased had been warned of the letter summoning the

> violent tenant, he would have been alerted to the possibility of violence

> and would not have died.

>

> House of Lords hold that although harm was foreseeable, there was no

> positive duty at common law to warn the deceased. The claim under the

> Human Rights Act based upon art 2 (right to life) was also struck out,

> either because (per Lord Hope)there was no knowledge of a real and

> immediate threat to life or because (per Lord Rodger) the local authority

> qua landlord, unlike say a police force, is not the body upon whom the

> duty is owed,

>

> Most of the reasoning is good, save for some pretty feeble stuff about

> 'defensive practices' ([28]).

>

> Rob

>

>