Police - Michael and others v The Chief Constable of South Wales Police and another (Supreme Court)

The Supreme Court has held that the police did not owe a common law duty of care in negligence to a specific member of the public where they were aware, or ought reasonably to have been aware, of a threat to her life or physical safety. Nor did they owe such a duty where a member of the public had given them apparently credible evidence that an identifiable third party presented a specific and imminent threat to her life or physical safety.

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 the 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 requiring a non-emergency response. When the police later attended, they found Michael stabbed to death.

The issue was whether the police owed any duty of care to Ms Michael 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.

The Supreme Court found that the police do not generally owe a duty to exercise reasonable care to safeguard victims 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, except where the defendant is in a position of control over the third party or where the defendant has responsibility to safeguard the claimant under the Hedley Byrne & Co Ltd v Heller principle.

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 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.

COMMENT:

• 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 (both Lord Kerr and Lady Hale found a sufficient proximity of relationship to create a duty on the police)
• 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