This Case Commentary is written by Zilthai Kwasau, a Third Year Law Student of University of Leicester

Case details

Judgment date: 28 Jan 2015

Case name: Michael and others (Appellants) v The Chief Constable of South Wales Police and another (Respondents) [2015] UKSC 2

Neutral citation number: [2015] UKSC 2

Court Supreme Court of United Kingdom

Case ID: UKSC 2013/0043

Justices: Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Reed, Lord Toulson, Lord Hodge

Facts of the case

A Ms Michael dialled 999, fearing an imminent threat from her ex-boyfriend. She had informed the call handler that the ex-boyfriend had come to her house, finding her with another man. He proceeded to bite her ear and kidnap the other man. She states he said before he left: “I’m going to drop him home and (inaudible [f***king kill you]”.The call handler gave evidence that she hears “Hit you” instead of “Kill you”.

Ms Michael lived in the area of South Wales Police, but the call was rerouted to the Gwent Police. They classified it as a call requiring immediate response by police officers. When reciting the version of events to the South Wales police the call handler did not mention the threat to kill. This caused the priority of the call to be downgraded meaning police officers should respond within sixty minutes. Ms Michael called a second time, handlers heard Ms Michael scream and then the line cut off. Police arrived 8 minutes after this second call to find her dead from her fatal wounds.

Parties involved include Michael’s family as Appellants and South Wales police as Respondents.

Ms Michaels's family sued two police forces for damages for negligence under the Human Rights Act 1998, invoking the right to life in the police appeal in the Court of Appeal.

The police (Respondents) sought to strike out these claims which was reversed on appeal. The Court of Appeal reversed the decisions to progress the claim for damages for negligence under the Human Rights Act (HRA) 1998. However, the Article 2 European Convention on Human Rights (ECHR) claim proceeded to trial at the Supreme Court.

The Appellants (the Michaels family) appealed to the Supreme Court on the police’s liability in negligence following the Court of Appeal’s dismissal to allow the negligence claim to go to trial.

The police cross-appealed against the decision for the Article 2 ECHR claim to proceed to trial. This is to say the police force believed both the Human rights claim and the negligence claim should be dismissed.[1]

Issues involved in the case

Negligence: if the police owed a common law duty of care to Michael according to and if they had assumed responsibility to take reasonable care of Michael. Common law reference was section 83 of the Police Reform Act 2002.

Right to Life: whether the police violated the right to life according to Article 2 of the ECHR[2]

Arguments of the parties

The Appellants (Michael’s Family):

They argued that the police did owe a duty of care. They had been alerted about the danger that Ms. Michael was in and was responsible for acting quickly to prevent harm and even death but failed to do so. This is what the claimants believed was a violation of Ms Michaels's right to life. Under Article 2 of the ECHR.

The Respondents (Chief Constables):

The police force argued that there was no breach of duty and aimed for these claims made against them to be completely strike.

They supported their argument with case law Hill v Constable of West Yorkshire which established that police should not generally be held liable for negligence when there is an omission, that is there is a failure to prevent harm to individuals.

They also claimed that they were unaware of the immediate risk to Ms. Michael’s Life. Since it gives n in evidence that they misheard kill and downgraded the harm level.

Legislation involved

Common law: police duty of care determined by the famous Caparo test. The three factors are foreseeability of harm, proximity between parties, and whether is it fair, just, and reasonable to impose a duty.

HRA 1998 which was the claim to a right to life according to the Article of the ECHR. At the time UK had obligations under the HRA that incorporated the ECHR into domestic law.

Key elements of the Judgement

The Supreme Court dismissed the appeal of the appellants weighted at 5-2 with Lady Hale and Lord Kerr dissenting.

Lord Toulson, the lead judge, proposed that there should be an exception made for the ordinary application of the common law principles in this context. So, the defendant (the police force) would not be generally found liable for the harm caused by a third party (in this case, the victim’s ex-boyfriend).

Lord Toulson rejected that the police owed Ms Michael a duty of care in negligence where:

i) They ought reasonably to be aware of the threat to life of an identifiable person also named the ‘Intervener’s Liability Principle)

- It can be debated the effectiveness police’s liability in this domestic situation in terms of intervention

- There are significant financial issues for the police and the public

- The aims of the ECHR claims are different from the aims of civil actions like negligence. Essentially a misapplication of rights

ii) A member of the public gives police evidence that a third party is threatening the safety or life of a victim

- It was clear that the threat to life Ms Michael suffered was from a third party (her boyfriend)

iii) There was no assumption of responsibility

- LJ Toulson put into question whether what the call handler did was the assumption of responsibility

- The call handler did not promise how quickly the officers would respond and did not advise her to remain in her house.

Lord Kerr dissented from this decision and would have allowed the appeal.

- He claimed that the general rule that there is no duty to protect others from third-party harm is appropriate for police officers whose duty is to protect members of the public from all types of harm

- ‘The police have been empowered to protect the public from harm’[3]

Lady Hale also dissented and supported Lord Kerrs judgement

- The police owe a common law duty of care to protect members of the public from harm caused by third parties[4]

Conclusion

This is a very impactful case in the discussion of negligence in England and Wales. For many there is a shock at the conclusion the Supreme Court came to, essentially dismissing the Appellant's claim of negligence. The main conflict seems to be the extent of the Police’s duty of care. English law has often favoured the police's immunity from third-party actions even though this has been rightly criticized as outdated. [5] The judgment of Lady Hale and Lord Kerr, highlighting the common law duty of care can arguably be said to be the more reasonable judgment. It has been argued that there was a misapplication of case law and using Hill v Chief Constable of West Yorkshire and there is too much hesitancy in holding the police force liable and accountable for their lack of quick intervention. The decision can be concluded to be “not just fair and reasonable”[6] and when it comes to safety in England and Wales “you are relying on the police at your own risk”[7]

References

A Sprince and J Cooke, 'Article 6 and Immunity in Tort: Let the Facts Speak for Themselves' (1999) 15(4) Tolley’s Professional Negligence 228.

Hill v Chief Constable of West Yorkshire* [1989] AC 53 (HL).

Justice “Micheal and others v The Chief Constable of South Wales Police and another” (2019) accessed: 10 October 2024

Michael and others v The Chief Constable of South Wales Police and another* [2015] UKSC 2, [2015] AC 1732.

N Hodge, 'Police, Negligence and the Elusive Special Ingredient: A Critical Analysis of Michael v Chief Constable of South Wales Police and the Liability of Police for the Actions of Third Parties' (2018) 24 Canterbury L Rev 134-135.

Supreme Court Website “Michael and others (FC) (Appellants) v The Chief Constable of South Wales Police and another (Respondents) - The Supreme Court” Accessed October 10th

[1] Justice website Michael and others (FC) (Appellants) v The Chief Constable of South Wales Police and another (Respondents) 2015)

[2] Supreme Court Website (Michael and others (FC) (Appellants) v The Chief Constable of South Wales Police and another (Respondents) 2015)

[3] Michael Chief constable 10 at para 181

[4] Michael v Chief constables

[5] Alan Sprince and John Cooke “Article 6 and immunity in tort: let the facts speak for themselves” (1999) 209 at 230.

[6] Nicolas Hodge “Police, Negligence and the Elusive Special Ingredient” (2018) p. 134

[7] Nicolas Hodge “Police, Negligence and the Elusive Special Ingredient” (2018) p. 135