There seem to be three really interesting points in the case:

(1) All their Lordships and  the Baroness agree that the time has come to dispose of Lord Mackay's "very likely" stuff .  As much as I personally enjoyed drawing his Lordship's pendulum on the board during lectures, I have always been a fan of Goff's categorical approach... of course they don't have to quite overrule Lord Mackay because he reached the same result in Littlewoods as Goff, it was long past time for "very likely" to be discarded into the bag of very bad ideas. But the Lords and Baroness might have acknowledged that were in fact rejecting what was the majority in Littlewoods, and what seemed to be its endorsement in Hartwell.

(2) The continued decline of foreseeability more generally.  Hale says that foreseeability is necessary but not sufficient, one wonders if foreseeability should actually just be deleted from our accounts of what a duty is ?  If Lord Reid no longer got it right in Dorset Yacht, can one also simply now say that Lord Atkin as well has little of use to add to  the modern law of negligence.

(3) The rather short explanation as to why the HRA claim ought to be struck.  It seems to me that that there might have been some merit in finding out a bit more about the Housing Authority knew or did not know.  I could have the Scottish procedure wrong here, so can be corrected here, but it seems to me hard for plaintiffs to be struck on their inability to show something like the defendant's knowledge, on the pleadings, when one needs discovery to find out what was known.

Geoff

________________________________________

From: Robert Stevens [robert.stevens@ucl.ac.uk]

Sent: Friday, 20 February 2009 1:31 a.m.

To: Jason Neyers

Cc: obligations@uwo.ca

Subject: ODG: Failure to Warn Tenant

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