Michael v Chief Constable of South Wales Police [2015] UKSC 2

Key points

  • The ordinary principles of negligence should be applied public authorities
  • The police does not owe a general duty of care to the public at large for the discharge of their duties

Facts

  • The deceased’s ex partner had come to her home, violently took her current partner and told her that he will return to hit her
  • The deceased made a call to the police, the call was initially graded as requiring an immediate response but was accidentally downgraded in urgency
  • The resultant delay in response resulted in her death

Issue

  • Did the police owe a duty of care to the deceased?

Held (House of Lords)

  • Claim in negligence failed; there was no duty of care owed by the police

Lord Toulson

Duty of care

  • The whole point of the Caparo case was to repudiate the idea of a single test to be applied to all cases to find the existence of a duty of care, rather an incremental approach should be used: [106]

Liability of public authorities

  • English law does not as a general rule impose liability on D for the harm caused by a third party, the reason being that common law does not impose liability for pure omissions, these principles are equally applicable where D is a public body
  • Exceptions to the omissions rule also apply to a public authority defendant:
    • Where D is responsible for creating the danger
    • Where D is in a position of control over the third party
    • Where D assumes responsibility over C

Liability of police

  • It does not follow from the setting up of a protective system from public resources that if it fails to achieve its purpose, the public should bear the additional burden of compensating a victim for harm caused by a third party, this would be contrary to the ordinary principles of common law
  • ‘The question is therefore not whether the police should have a special immunity, but whether an exception should be made to the ordinary application of common law principles which would cover the facts of the present case”
  • The duty of the police for the preservation of the peace was owed to members of the public at large and did not involve the kind of close or special relationship necessary for the imposition of a private law duty of care

Public policy considerations

  • Lord Toulson criticised the application of public policy considerations that militate against imposing duties of care on public authorities in preceding cases
  • Operational consequences of changing the law of negligence is purely speculation
    • Potential improvement in investigations and reduction of domestic violence could happen, but so could the police diverting resources in the fear of being sued
  • The one clear consequence is that payment of compensation and litigation costs will increase the burden on the police budget

Current case

  • There was no assumption of responsibility
  • The only assurance the call handler gave to the deceased was that she would pass on the call to the South Wales Police, she gave no promise how quickly they would respond
  • In contrast, the ambulance call handler in Kent v Griffiths gave representations that the ambulance will arrive shortly

Lord Kerr’s dissent

The omissions rule should not apply to public authorities

  • Whereas a private individual’s freedom has an intrinsic value in its contribution to an autonomous life, the value of the state’s freedom is instrumental and lies in the contribution it makes to the fulfilment of its proper functions
  • The police should not be exempted from liability on the general common law ground that members of the public are not required to protect others from harm from third parties, such protection of autonomy for individuals is not appropriate for members of a force whose duty is to provide precisely the type of protection from harm that befell the deceased

Current case

  • There was sufficient proximity and the police played a direct causative role in the deceased’s death