Michael and others v The Chief Constable of South Wales Police and another, Supreme Court, 2015
The Facts
The claimants were the parents and children of Joanna Michael, who was murdered by her ex-partner.
Ms Michael made a 999 call advising that her ex-partner had threatened to kill her after coming to her house and finding her with another man.
The call handler (who reported not hearing Ms Michael mention this threat to kill) gave an abbreviated account of their conversation to South Wales Police, which excluded the threat to kill. The call was subsequently graded as only requiring a response within 60 minutes and not an emergency response.
About 14 minutes later Ms Michael called 999 again; she screamed and the line went dead. South Wales Police arrived at her address 8 minutes later. They found that she had been stabbed to death by her ex-partner.
Issues
The issue was whether the police owed any duty of care to Ms Michael. The Appellants claimed in negligence as well as under Article 2 of the Human Rights Act 1998 (right to life).
The Court of Appeal had held that the negligence claim should be dismissed, but that the Art. 2 claim should proceed to trial. The claimants appealed on the negligence claim; the police cross appealed on the Art. 2 claim.
Held
Lord Toulson, who delivered the majority Judgment, found that the police do not generally owe a duty to exercise reasonable care to safeguard victims or potential victims of crime, except in cases where there has been a representation and reliance.
It was held that English law does not as a general rule impose liability on a defendant for injury caused to the claimant by a third party, subject to two exceptions:
1. Where the defendant was in a position of control over the third party and should have foreseen the likelihood of the third party causing damage to somebody
2. Where the defendant assumes a positive responsibility to safeguard the claimant under the Hedley Byrne & Co Ltd v Heller principle
The question was 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 case.
It was noted that the incidences of domestic violence and the facts of individual cases were shocking, but they did not justify the creation of a new category of duty of care. Accordingly, it was found that the Claimant's negligence claim had rightly been dismissed.
It should be noted that both Lord Kerr and Lady Hale disagreed with this reasoning and found a sufficient proximity of relationship to create a duty on the police. In light of this, it may be that an appeal to the Strasbourg Court will be considered.
It was found that as the Art.2 issue depended on the answers to several outstanding questions of fact, e.g. whether the call handler ought to have heard Ms Michael say that her ex-partner had threatened to kill her. These questions were properly a matter for investigation at trial. Accordingly the Defendant's appeal was dismissed and the case will now proceed to trial under the Human Rights Act.
What can we learn?
- The judgment reaffirms that the Police will retain their immunity in negligence cases involving pure omissions
- However, the scope of the new approach and whether the immunity would survive in cases that do not involve pure omissions is not fully explored in the judgment. This is likely to lead to further challenges in future, which may yet see the scope of the police's immunity reduced, particularly given the disagreement within the judiciary at the highest level
- The judgment does not sit easily with existing Supreme Court case law, where liability has been imposed on many different public bodies in analogous circumstances
- Given the law has been restated at the highest level, it remains to be seen whether Parliament will seek to intervene in this emotive area of law
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