It is a well-known fact that the tort of negligence is a flexible tool with a wide potential for making careless defendants liable to compensate claimants for damage they have occasioned. This wide potential makes it necessary for the law to define the reach of the tort, since in some categories of cases the imposition of liability on defendants is unjustified. One means of defining the ambit of the tort is through the duty of care mechanism: if people in the particular defendant’s position are said not to owe a duty of care towards other people in the claimant’s position, then the particular defendant will not be liable for his or her carelessness. In the very recent and well-publicised case of Michael v The Chief Constable of South Wales Police [2015] UKSC 2, the Supreme Court found occasion to consider the extent to which the police owe a duty of care towards the public, in particular members of the public who make 999 calls for help.
The Facts
At about half-past-two in the morning, Ms Michael made a 999 call from her home. She lived in South Wales but her mobile signal was picked up and routed to the Gwent Police call centre. She told the operator that her ex-boyfriend had just entered her house, found her with another man, and had assaulted her. She also said that her ex-boyfriend had left, but had threatened to return and kill her, but there was a dispute as to whether the operator heard this. The operator relayed the complaint to the South Wales Police for action, but due to a lack of mention concerning the threat to kill, the priority of the call was downgraded such that an immediate response was deemed unnecessary. About 15 minutes later, Ms Michael made a second 999 call, and was heard to be screaming. The police arrived within eight minutes of this call and found that she had been brutally murdered.
Ms Michael’s family, the claimants, brought claims against the police in the tort of negligence and under Article 2 of the ECHR. The Court of Appeal granted summary judgment in favour of the police in relation to the negligence claim, but held that the Article 2 claim should proceed to trial. The claimants and the police respectively appealed and cross-appealed this decision.
The Decision
A Full Court of the Supreme Court, with seven judges sitting, held that the claimants’ Article 2 claim should proceed to full trial, since the outcome would depend on the question of fact of whether the operator heard or ought to have heard Ms Michael say that her ex-boyfriend had threatened to kill her. The judges were, however, divided as to the negligence claim, the majority ultimately dismissing the claimants’ appeal on this point.
The essential question was whether the police owed a duty of care to Ms Michael upon receiving her (first) 999 call. Lord Toulson, with whom Lords Neuberger, Mance, Reed, and Hodge agreed, answered this in the negative. In a well-reasoned judgment, Lord Toulson provided a statement of the law relating to duty of care as it currently stands. The common law is generally reluctant to impose liability for pure omissions. There are, however, the two well-recognised exceptions, namely where the defendant was in a position of control over the victim, and where there was an ‘assumption of responsibility’ by the defendant over the victim. These exceptions are equally applicable to defendants which are public bodies as they are to private litigants. As cases such as Murphy v Brentwood DC [1991] AC 398, Stovin v Wise [1996] AC 926, and Gorringe v Calderdale MBC [2004] 1 WLR 1057 indicate, short of falling within the exceptions, there is no justification for imposing liability based on organisational defects or an individual’s fault. This is because the public at large should not normally bear the burden of compensating a particular victim of harm thereby caused.
Lord Toulson then considered three arguments advanced in favour of expanding the common law to impose a duty of care on the police. The first was that the imposition of such duty of care would provide adequate protection for victims of domestic violence. This argument was rejected on the basis that there is no justification for prioritising such victims. In other words, the duty of the police for preserving the peace is owed to the public at large, which does not give rise to a special duty of care owed towards a particular category of victims.
A second argument was that a duty of care should arise if the victim herself has provided the police with credible evidence that she is under a specific and imminent threat to her life or personal safety. This was also rejected on the basis that the law ought not to draw a distinction based on whether the threat was reported by the victim or by someone else.
The third argument Lord Toulson considered was the formulation suggested by the minority judges, Lord Kerr and Lady Hale. The argument is that a sufficient proximity of relationship arises where (1) there is a closeness of association between the parties, (2) the defendant is provided information that the intended victim is likely to suffer serious harm if urgent action is not taken, (3) the defendant is reasonably expected to provide protection in the circumstance, and (4) such protection can be provided without unnecessary danger to himself. Lord Toulson rejected this argument based on its inherent circularity. Lord Kerr’s formulation amounted to saying that ‘there is a relationship of proximity if the relationship is sufficiently close for there to be proximity’ … ‘It provides no yardstick for answering the question which it poses’ (see paras [133] – [134]).
Ultimately, Lord Toulson held that the police had not assumed a responsibility for Ms Michael’s safety. The operator had only said that she would pass on the call to the South Wales Police; she did not make an assurance as to how quickly the police would respond. This distinguished the present case from Kent v Griffiths (No. 3) [2001] QB 36, where the operator gave misleading assurances as to the timing at which the ambulance would arrive.
Conclusion
One might feel that the outcome does undue injustice to the claimants, particularly in view of the fact of Ms Michael’s brutal murder which could well have been prevented had the police acted more efficiently. However, one should also bear in mind the precedential value of the court’s judgment. Imposing a duty of care on the police even though there was no assumption of responsibility would not only have significant consequences on the finances of the police force, but would likely also have draconian results for police practices, encouraging for instance a defensive approach to 999 calls.
The ramifications of expanding the common law to include the duty of care on the police are understood. However, would it have been possible to apply the proximity and reasonableness principles in order to further discover the content of the duty of care owed to the victim?
Secondly,the point raised in the conclusion regarding the precedential value is noted. I wish to add that it is equally important to consider how the courts through the development of case law have avoided the effect of same on future cases. I refer specifically to the same concern expressed as a result of the decision in the case of Bolton v Stone and its precedential impact on future cases. For instance, some of the decisions (post-Bolton) with similar claims against cricket clubs were distinguished on points of fact and law and thus, did not produce the same judgment.
The part of the argument based on finances ignores the fact that it is the public, including the murdered woman, who are paying the wages/salaries of the police and the emergency call operators..