Vince Williams reviews the Supreme Court decision in claim for negligence against South Wales Police by Joanna Michael’s family

News | Thu 29th Jan, 2015

Michael & Other v Chief Constable for South Wales & Ano. [2015] SC2 represents the most recent attempt to overcome the not inconsiderable hurdles facing any claimant seeking to bring a claim founded in negligence against the police.

Facts

M made a 999 call to the police. She said that her ex-boyfriend was aggressive, and had hit her. M further informed the call handler that her ex-boyfriend had threatened to “kill” her. The call handler claimed that she had only heard the word “hit”. The message was relayed to South Wales police but no reference was made to threats to kill. The call priority was downgraded.

M made a second 999 call in which she could be heard screaming. The police arrived some 8 minutes later to find that she had been killed by her ex-boyfriend.

F, the administrator of M’s Estate brought claims in negligence and under ECHR art.2.

Negligence

In relation to the question of whether the police owed a duty of care to M on receiving the 999 call the Court observed that English law did not as a general rule impose liability on a defendant (D) for injury or damage to the person or property of a claimant (C) caused by the conduct of a third party (T): Smith v Littlewoods Organisation  Ltd [1987] AC 241, 270. The fundamental reason was that the common law did not generally impose liability for pure omissions.

This rule was not absolute. One well recognised exception arose where D was in a position of control over T and should have foreseen the likelihood of T causing damage  to  somebody  in close proximity if D failed to take reasonable care in the exercise of that control, as in the well know Dorset Yacht case.

The second general exception arose where D assumed a positive responsibility to safeguard C under the Hedley Byrne principle, as explained by Lord Goff in Spring v Guardian Assurance Plc [1995] 2 AC 296.

The Court observed that these general principles applied to private litigants, but were equally applicable where D was a public body.

It did not follow from the setting up of a protective system from public resources that if it failed to achieve its purpose, through organisational defects or fault on the part of an individual, the public at large should bear the additional burden of compensating a victim for harm caused by the actions of a third party for whose behaviour the state is not responsible. To impose such a burden would be contrary to the ordinary principles of the common law[1].

The refusal of the courts to impose a private law duty on the  police to exercise reasonable care to safeguard victims or potential victims of crime, except in cases where there has been a representation and reliance, does not involve giving special treatment to the police. It is consistent with the way in which the common law has been applied to other authorities vested with powers or duties as a matter of public law for the protection of the public.”[2]

The question was not whether the police had 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 case under consideration[3].

Whilst acknowledging that the categories of negligence were never closed and that it would be open to the court to create a new exception to the general rule about omissions. “The development of the law of negligence has been by an incremental process rather than giant steps. The established method of the court involves examining the decided cases to see how far the law has gone and where it has refrained from going. From that analysis it looks to see whether there is an argument by analogy for extending liability to a new situation, or whether an earlier limitation is no longer logically or socially justifiable. In doing so it pays regard to the need for overall coherence. Often there will be a mixture of policy considerations to take into account.”[4]

The Court rejected the argument that the nature and scale of the problem of domestic violence was such that the courts ought to introduce such a principle to provide protection for victims and a spur to the police to respond to the problem more effectively. The Court noted that if the foundation of a duty of care was the public law duty of the police for the preservation of the Queen’s peace, it was hard to see why the duty should be confined to potential victims of a particular kind of breach of the peace. It was also hard to see why it should be limited to particular potential victims.

In relation to the argument that the imposition of such an exception would improve police efficiency, the Court stated that it had no way of judging the likely operational consequences of changing the law of negligence in the way proposed. The only consequence of which the Court would be sure was that the imposition of liability on the police to compensate victims of violence on the basis that the police should have prevented it would have potentially significant financial implications. The payment of compensation and the costs of dealing with claims, whether successful or unsuccessful, would have to come either from the police budget, with a corresponding reduction of spending on other services, or from an increased burden on the public or from a combination of the two[5].

The Court had little sympathy with the argument that consistency between the common law and the Convention should be encouraged. The same argument had been advanced in Smith as a ground for holding that the police owed a duty of care to the deceased after he reported receiving threats. The argument was rejected. Lord Brown (paras. 136-139)did not consider that the possibility of a Human Rights Act claim was a good reason for creating a parallel common law claim, still less for creating a wider duty of care. He observed that Convention claims had different objectives from civil actions, as Lord Bingham pointed out in R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673. Whereas civil actions are designed essentially to compensate claimants for losses, Convention claims are intended to uphold minimum human rights standards and to vindicate those rights. The difference in purpose has led to different time limits and different approaches to damages and causation. Lord Brown recognised that the violation of a fundamental right is a very serious thing, but he saw no sound reason for matching the Convention claim with a common law claim. To do so would in his view neither add to the vindication of the right, nor be likely to deter the police from the action or inaction which risked violating it in the first place.

Assumption of Responsibility?

Was there an assumption of responsibility by the police in the present case? A majority of the Supreme Court thought that this argument was “untenable”. The only assurance which the call handler gave to M was that she would pass on the call to the South Wales Police. She gave no promise how quickly they would respond.  She did not advise or instruct her to remain in her house.

In the circumstances no duty of care was owed to M.

Article 2 ECHR

In relation to the claim under Article 2 ECHR, it was argued on behalf of the police that even if the call handler had heard the threats to kill, it would not have been enough for a reasonable person to conclude that there was a real and immediate threat to her life. The Supreme Court disagreed. The question of what the call handler ought to have made of the 999 call in all the circumstances was one of fact and was properly a matter for investigation at a trial.

Comment

There had been some expectation that the Supreme Court would seek to fundamentally alter the law in relation to police duties and negligence. This has not occurred.

The concept of `police immunity` remains out of favour. Rather, the argument against police negligence claims is now articulated in terms of broader, long established common law principles, underpinned by public policy considerations.

Whatever the legal mechanism – the bottom line is that claims in negligence against the police continue to face significant hurdles. Actions in negligence founded on police actions (or inaction) arising in the context of the investigation of crime remain likely to fail – and to fail at an interlocutory stage.


[1] See para. 114.

[2] See para. 115.

[3] See para. 116.

[4] See para. 102.

[5] See para. 122.

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