Michael v Chief Constable of South Wales  UKSC 2
The claimants were the parents and children of Joanna Michael, who had been murdered by her former partner. Ms Michael made a 999 call in which she explained that her ex-boyfriend had come to her house and found her with another man. He told her that he was going to kill her. The call handler, who said she did not hear 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. About 14 minutes later Ms Michael called 999 again; she screamed and the line went dead. South Wales Police were informed and arrived at her address 8 minutes later. They found that she had been stabbed to death by her ex-partner.
The issue was whether the police owed any duty of care to Ms Michael. The claimants claimed in negligence as well as under art. 2 of the Human Rights Act 1998 for breach of the defendants’ duties as public authorities to protect Ms Michael’s right to life. The Court of Appeal had held that the negligence claim should be dismissed on a summary basis 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.
Lord Toulson, with whom Lords Neuberger, Mance, Reed and Hodge agreed, delivered the majority judgment. His starting point was the simple proposition that the police owe a duty to the public at large for the preservation of the Queen’s peace – that is, the prevention of violence and disorder. He proceeded to address how this duty has been interpreted, giving an excellent and concise analysis of the relevant cases, both domestic and foreign, on the liability of the police in negligence.
Lord Toulson went on to state 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:
- 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 in close proximity if the defendant failed to take reasonable care in the exercise of that control (i.e. Home Office v Dorset Yacht Co Ltd  AC 1004); or
- Where the defendant assumes a positive responsibility to safeguard the claimant under the Hedley Byrne & Co Ltd v Heller & Partner Ltd  AC 465 principle.
Lord Toulson noted that in some areas, such as health and education, public authorities provide services which involve relationships with individual members of the public giving rise to a recognised duty of care no different from that which would be owed by any other entity providing the same service (i.e. Roe v Minister of Health  2 QB 66, Woodland v Swimming Teachers Association  UKSC 66, X (Minors) v Bedfordshire CC  AC 633).
Vitally, however, he was of the view that as a matter of logic it does not follow from the setting up of a protective system from public resources that, if it fails to achieve its purpose through organisational defects or individual fault, the public at large should bear the additional burden of compensating the victim for harm caused by the actions of a third party for whose behaviour the state is not responsible. The question was not whether the police should have some special immunity in such circumstances, but in fact whether an exception should be made to the ordinary application of common law principles in order to impose liability.
The argument that the particular problem of domestic violence merited this type of extraordinary approach was rejected – why should the duty be owed only to victims of a particular type of breach of the peace and not others? Restriction of its ambit to only particular identified victims outside the realm of domestic violence would also appear to have unprincipled consequences: if the police negligently fail to catch a would-be criminal who shoots at his intended target but misses and hits someone else, why should the latter be unable to recover when the former would have been able to?
In this case, the defendant was neither in a position of control over the ex-partner, nor had there on the facts been any assumption of responsibility towards the claimant (i.e. in the form of an assurance given about the time of response). As a result, the claim in negligence had rightly been dismissed.
On the other hand, resolution of the art. 2 issue would depend on the answers to several outstanding questions of fact, namely: whether the call handler ought to have heard Ms Michael say that her ex-partner was threatening to kill her and, if not, whether she should have asked Ms Michael to repeat herself having failed to hear clearly; alternatively, whether even without the threat to kill the initial phone call would have been enough for a reasonable person to conclude that there was a real and immediate threat to her life meriting nothing less than an immediate response.
Both the appeal and cross appeal were therefore dismissed.
A Four-Stage Approach to Proximity
Lord Kerr, whose analysis Lade Hale supported in a concurring judgment, agreed that the cross appeal should be dismissed, but dissented on the issue of the defendant’s liability in negligence. In cases such as the instant one, he considered that proximity would consist of the following elements:
- A closeness of association between the claimant and defendant, which can be created by information communicated to the defendant, but need not necessarily come into existence in that way.
- Such information should convey that serious harm is likely to befall the intended victim in the absence of urgent action.
- The defendant is a person or agency who might reasonably be expected to provide protection in those circumstances.
- The defendant should be able to protect the intended victim without unnecessary danger to himself.
In response to Lord Toulson’s criticism that this test was circular (i.e. ‘proximity’ depends on ‘closeness of association’, which is the same thing), Lord Kerr commented that this would be true of any test of proximity and, indeed, is true of many other bases of liability: the example he gave was that something is ‘disproportionate’ if it ‘fails to strike a proportionate balance’. In addition, while he conceded that his criteria were open to the charge of arbitrariness, he believed that they provided a workable basis to attach liability for ‘glaring omissions’ by police forces without imposing an impossible burden. The same, he said, was true of the limitation of his test to cases of potential personal injury – greater importance should attach to the protection of lives and physical well-being than to property.
Lord Kerr concluded that on the facts there was clearly a relationship of proximity on basis of his test, and that any conflicting public policy reasons were insufficient to displace the overarching principle that wrongs should be remedied. The appeal ought therefore to have been allowed.
Against a tragic factual background, Lord Toulson provides a masterful explanation and synthesis of the authorities in this complex area. The departure from Hill’s ‘immunity’ analysis to an ‘absence of duty’ model is confirmed. It is worth noting the rejection as speculative of the familiar argument that imposition of liability would automatically result in defensive policing – but note also the rejection on the same basis of the counter-argument that potential liability could improve police standards. Both of the main judgments are to be praised for their attempts to engage at length with the theory behind the concept of ‘proximity’ – Lord Toulson by reference to the cases, Lord Kerr from an academic perspective. The finding by both that it represents a conclusion rather than a starting point affirms the line of thought sparked by Lord Oliver’s perceptive comment in Alcock v Chief Constable of South Yorkshire Police  1 AC 310, 411 that proximity ‘depends more upon the court’s perception of what is the reasonable area for the imposition of liability than upon any logical process of analogical deduction.‘