The long and sorry story of X & Y v Hounslow appears to have reached an end. As you will recall, this was the case that resulted from the horrendous abuse of two highly vulnerable Hounslow tenants in their home by youths. Hounslow had been aware of the danger to X & Y in the period leading up to the abuse but had failed to make any provision to transfer them to alternative, safer, accommodation. At first instance, the High Court found for X & Y on a claim based on negligence (our report), then the Court of Appeal overturned that decision, finding there was no duty of care (our report). X & Y, together with Z (X’s mother), applied to the ECtHR claiming a breach of Art 3 (failure to protect from harm) Art 6 (refusal of the domestic courts to considert he claim for damages), Art 8 and Art 13 (absence of duty of care meaning no remedy for breaches of Art 3 and 8)(our report).

That application has now been struck out, following a ‘friendly settlement agreement’. The UK is to pay X and Y 25,000 Euros each, Z 7,000 Euros and costs of 12,500 Euros.

While it is certainly a good thing that X and Y have received some damages (and I hope that some agreement was reached in respect of the costs in the domestic courts, or the legal aid statutory charge is going to be horrendous), it is, from a broader perspective, a pity that the application did not go on to full hearing. As we noted at the time of the first instance decision, the blanket absence of a duty of care in housing provision is a regrettable position, particularly where, as here, the social services and housing departments of a unitary authority are involved. Whether and to what extent an Art 3 and Art 8 duty might have been found by the ECtHR will remain an unanswered question, but if one was found, it would have had the effect of overruling the common law precedents on negligence that doomed the domestic claim (Hussain, Mowan et al).

While X and Y obviously have their own personal situation to deal with – we hope strongly that the settlement is of some aid to them – and can’t be expected to go on for the years it might have taken for an ECtHR decision, it is the unfortunate position that someone else will also have to suffer terrible circumstances, then the years of domestic court hearings and potentially further years of an ECtHR application before there is a change in the law. X & Y did not get permission to go to the House of Lords, presumably because the Lords had just decided in Glasgow CC v Mitchell. We can only hope that a future case might get a consideration by the Supreme Court, and that this settlement might be bourne in mind.

As you will recall, this was the desperately sad case which, at first instance, looked to establish a duty of care for local authorities to their tenants in certain circumstances. It was overturned at the Court of Appeal (our report) and then permission was refused to go to the House of Lords.

The ECtHR statement of facts and questions to the parties is here. It appears that the claimants are arguing breach of Art 3 and Art 8 rights. This could be a very significant case.

This was the Court of Appeal hearing of an appeal by Rochdale MBC (the anor in this case) against the judgment of HHJ Grenfell in the Technology and Construction Court. The issue was the finding that Rochdale had a measure duty of care to the Claimants and had been in breach of that duty.

The facts and history of the case are not straightforward, but the relevant facts are that Rochdale owned an area of land, which were playing fields. It sold part of the land to Barrett for development as a housing estate and retained the remainder. The Claimants live in three properties backing on to the playing field, at the corner of the part which was sold to Barratt. Before Barratt began devlopment, water on the playing field ran towards the Claimant’s side of the field, but was carried away by a culvert and drainage ditch. In carrying out the development, Barratt negligently blocked and built on the culvert and drainage ditch as it ran through their property, and their boundary fence also directed water towards the corner where the Claimants’ properties adjoined.

The Claimants’ properties were flooded on a number of occasions as a result. Water flowed from the land retained by Rochdale and, to some extent, over the Barratt land. The Claimants (or in effect their insurers) claimed for relief and damages against both Barratt, who were clearly responsible, but denied it and against Rochdale, who appeared to not be responsible to the extent that the blocking of the culvert and ditch was not its doing.

The Claim had a complex history, but at first instance, Barratt was held to be liable in damages. Rochdale were also found liable as being in breach of a measured duty to take reasonable steps to abate the nuisance comprised in the water flooding from their land to cause damage on the claimants’ land. Barratt, having sold the properties, could no longer straightforwardly effect a remedy across what had been their land.

Rochdale appealed the finding that it was in breach of a measured duty, which it said, inferentially, meant

that the duty extended to requiring Rochdale themselves to carry out the necessary relief works and to pay for them irrespective of financial contribution from Barratt who were primarily responsible. That this was the tenor of the judge’s decision appears from the discussion with him at the hearing on 12th October 2009 and from the fact that he ordered Rochdale to pay a substantial sum (£30,000) on account of damages.

In a nuisance claim such as this, the concept of ‘measured duty’ arises from the opinion of the Privy Council given by Lord Wilberforce on appeal from the High Court of Australia in Goldman v Hargrave [1967] 1 AC 645.

It was held that an occupier of land is under a general duty of care in relation to hazards, whether natural or man- made, occurring on his land to remove or reduce such hazards to his neighbour. The existence of the duty is based on the knowledge of the hazard, the ability to foresee the consequences of not checking or removing it and the ability to abate it by taking reasonable measures. [...] The law must take account of the fact that the occupier has had the hazard thrust upon him through no seeking or fault of his own. He may be of modest means in relation to the magnitude of the hazard or as compared with those of his threatened neighbour. The standard ought to be what is reasonable to expect of him in his individual circumstances.

In Goldman, the issue was burning gum trees – perhaps rarely an issue in Rochdale. In Leakey v National Trust [1980] 1 QB 485, the issue was an unstable mound of earth. Leakey found that:

the defendants’ duty was to do that which was reasonable for him to do. The criteria of reasonableness included what the particular defendant could be expected to do by having broad regard, where a serious expenditure of money is required, to his means. If a risk can be readily overcome or lessened, the defendant will be in breach of duty if he does nothing or too little. But if the only remedy is substantial and expensive works, it might well be that the landowner would discharge his duty by giving the neighbour permission to come onto his land to do agreed works at the neighbour’s expense, or on the basis of a fair sharing of expense.

In Holbeck Hall Hotel v Scarborough Borough Council [2000] QB 836, the issue was damage to an hotel due to a landslip in the Defendant’s land. It was held that

The scope of the duty depended not only on the defendant’s knowledge of the hazard, the ease and expense of abatement and his ability to abate it, but also on the extent to which the damage which in fact eventuated was foreseeable, and whether it was fair, just and reasonable in the circumstances to impose a duty. Justice did not require that the defendant should be held liable for damage which was vastly more extensive than that which was foreseeable.

In the present case, Rochdale argued that the Judge at first instance had failed to properly address the scope of any measured duty of care. Rochdale argued that the duty at most extended to constructing and paying for a catch pit and drainage ditches as their part of an extensive scheme, requiring multiple permissions, to correct the drainage. This scheme being under way and would now be virtually all paid for by Barratt. The Judge had failed to properly taken into account the extent of the Claimants’ claim for relief and damages against Barratt in deciding the extent of Rochdale’s breach of duty.

Held:
The measured duty of care must be based on what steps it is reasonable to take for one landowner to prevent damage to the land of another from a hazard on their land, in the particular circumstances. The duty arises once the landowner is, or should have become, aware that the hazard has come into existence. In the present case, the fact that the hazard arose from Barratt’s blocking of the ditches was, or should have been known at the time it became apparent that there was repeated flooding. This was to be taken into account in deciding the extent of Rochdale’s duty, but only to the extent that it was clear that the Claimants had a good cause of action against Barratt for the cost of relief works.

Rochdale was not responsible for the flooding, but it was clear that the only practicable way to prevent the flooding and remove the hazard was by construction of a catch pit on the retained land and pipe the water to a sewer, at considerable cost.

Given the nature of the retained land, Rochdale could, in our view, reasonably have been expected to allow the respondents access to it free of charge to enable the catch pit to be constructed and could also be expected to provide reasonable assistance in providing, or assisting the respondents to obtain, any consents necessary to enable the drainage to be laid.

The Claimants were insured and could have recovered the costs from their insurers and there was also the value of their rights to recover the costs from Barratt (although this was not a decided issue at the time the hazard arose, and Barratt denied the claim up to judgment, in the event).

However, the question was not the position at the time the hazard arose, but the position at the time of trial, by which time plans for relief of the hazard were well advanced and most of the permissions in place. Rochdale’s duty varied with changing circumstances. By the conclusion of the trial, Barratt’s liability was established and there was an indisputable right for the Claimants to recover the whole of the costs of the relief works from them. It would not be just, fair or reasonable to impose a duty on Rochdale to carry out or pay for any part of the relief works.

The Judge overstated Rochdale’s duty. This is not to say that there was not a duty:

they were plainly under a duty to cooperate in a solution which involved the construction of suitable drainage and a catch pit on their retained land. Whether the duty would extend to carrying out those works themselves or to carrying out the other work outside the retained land is something of an open question, which the facts found by the judge do not enable this court to determine. The duty did not extend, in our view, to obliging Rochdale to meet the whole cost of the relief works. It is plain from information we do have and to which we have referred that Rochdale did over the years cooperate in the matter of obtaining consents. It is far from clear whether a breach of duty for failing sufficiently to cooperate or facilitate could be established; nor whether that would sustain any material damages claim in circumstances in which Barratt were not accepting their liability to pay, and when this was the principal impediment to the carrying out of the works.

As a last point the Claimants/Respondents argued that the ditch on the remaining part of Rochdale’s land was the source of the flooding and was an artificial construction, so that the principle in Broder v Saillard (1875-6) LR 2 ChD 692 and Hurdman v N.E. Railway (1877-8) LR 3 CPD 168 applied, being liability regardless of fault. This was rejected on the basis that it was not the construction of this remaining part of the ditch which caused the flooding. That was Barratt’s blocking of the lower part.

Appeal allowed. The claim against Rochdale was not dismissed because:

the respondents should retain the formal possibility of continuing the proceedings before the judge to obtain a determination, in accordance with this judgment, of the scope of Rochdale’s measured duty of care [presumably to the extent of the duty to co-operate] and of whether they were in breach of it. That would require factual findings which this court is unable to make.

But the parties were urged to reach a sensible accommodation to avoid returning to the Judge.

When news of X first reached the NL team, the near unanimous response was one of pleasure at the result. Once we obtained a transcript and saw the reasoning of the trial judge, it became clear not only that an appeal would be pursued but that it would be successful. Those feelings were only strengthened by the decision of the House of Lords in Glasgow CC v Mitchell. And we’re been proved right.

The facts of X are truly awful. X and Y are, on any view, vulnerable adults. They both have learning difficulties and have low IQs. In these proceedings, they were protected parties represented by the Official Solicitor. They were married and had two children, aged 11 and 8. They were also secure tenants of LB Hounslow.

Local youths began to befriend X and Y, with a view to taking over their flat and using it as a place to take drugs, have sex, store stolen goods etc. These problems came to a head when the youths detained X, Y and their children in the flat for the weekend and repeatedly assaulted and abused them all. X and Y were forced to perform a variety of sexual acts. X was forced to drink urine and eat dog faeces. He was slashed with a knife and had kitchen cleaner sprayed in his mouth. The family’s possessions were thrown over the balcony. The children were assaulted and abused, as was the family dog.

The social services department had been aware of the problem of local youths exploiting X and Y and had taken some steps to ameliorate the problem but had not requested any emergency re-housing because, at that stage, an assault of this nature was unforeseeable.

X and Y issued proceedings against Hounslow, initially in nuisance and negligence but, at trial, only sought to argue that Hounslow owed a duty of care (and, hence, had breached that duty so as to give rise to liability in negligence) by failing to move X and Y prior to the assault. A claim under Articles 3 and 8 of the ECHR was also raised. The trial judge – in a rather confused judgment – allowed the claim. An appeal was inevitable.

The first question for the Court of Appeal was whether, taking into account the relevant statutory background, Hounslow owed any duty of care. After surveying a range of statutes, (rather like a student who just writes everything they know about a topic without ever actually answering the question) the Court noted that the trial Judge had not actually ever found that there had been any breach of statutory duty, nor had he found any individual in Hounslow to owe a duty of care. Rather, he had jumped straight to the “fair, just and reasonable” test in Caparo v Dickman [1990] 2 AC 605 and had concluded that it was indeed fair, just and reasonable to impost a duty of care.

For the Court of Appeal, the failure to find a breach of any statutory duty was crucial. It was difficult to see how a duty of care could exist merely because of a public law failure to carry out a duty or exercise a power. This was particularly so where, as here, what was actually said was that the failure to exercise a public law duty/power had given a third party an opportunity to cause harm to X and Y.

Following Glasgow CC v Mitchell, in order for X and Y to succeed, they would have to show that the law already regarded Hounslow as being under a specific responsibility to protect them from an identified risk or that Hounslow had entered into a relationship or undertaken responsibilities which gave rise to a duty of care. The relationship here – as in Mitchell – was contractual and there was noting in the tenancy agreement which suggested any duty of care or any assumption of responsibility. In particular, much of what Hounslow had done was in an attempt to discharge their statutory functions and, plainly, that could not give rise to an assumption of responsibility.

Whilst the focus of the judgment had been on the social services department, it was clear that, for similar reasons, no duty could be owed by the housing department. Hussain v Lancaster CC approved.

So – between X and Mitchell, that looks like the end of the road. In order for a landlord to be responsible in negligence for the acts of third parties (even if those third parties are tenants) there will need to be something quite extraordinary. Or an express statement in the tenancy agreement.

Also (and thanks to Rosaleen Kilbane of CLP for the information), the decision in Secretary of State for the Environment Food & Rural Affairs v Meier & Ors [2008] EWCA Civ 903 is also off to the Lords. Our note is here.

Specifically, the negligent failure found was that housing did not invoke emergency transfer processes, despite a) social services involvement with the family and b) complaints and warnings from neighbours about the youths’ presence and activities in the claimant’s home. It arose from a found lack of communication between social services and housing and lack of appreciation of the seriousness of the situation and failure to give priority in both departments, despite the evidence.

Damage of £97K, suspended pending appeal.

A couple, both with learning difficulties, were terrorised in their flat by a group of youths over two days, during which they were assaulted and abused. Hounslow Council had failed to rehouse the couple, although the threat of attack ‘was foreseeable’.

At the High Court, Hounslow argued there was no duty of care, but Mr Justice Maddison held otherwise. The failure to rehouse was negligent. Damages of £100,000 were awarded. Hounslow were given permission to appeal.

I’m looking forward to seeing the judgment on this one.