Michael v Chief Constable of South Wales Police (2015).

UK Supreme Court’s decision in the case of Michael v Chief Constable of South Wales Police (2015). You will be expected to use your legal research skills to obtain a copy of, or look up, this case and answer the following questions:

6. As succinctly as is reasonably possible, sum up the facts, decision, and reason for the decision in Michael in respect of the claim in negligence.

FACT Joanna Michael’s first call was diverted to Ms. Mason, worked in Gwent Control Room at 2:29 am, claiming that her former partner Cyron William was enraged to find out she was with another man and assaulted her. Ms. Mason classified the situation as “Garde 1” required an immediate response and passed details to Ms Gould in South Wales Control Room but failed to include the threat to kill, who then degraded as “Grade 2” which was a priority response that required police to arrive within 60 minutes. Ms. Michael made her second call, diverted to Ms. Mason again, with Michael screaming in the background. The Incident pushed back to G1 and police arrived at Ms Michael’s house at 2.51 am and found out she had been murder by Mr. William.

ISSUE The deceased family brought claims against the Chief Constable of the Gwent and South Wales Police in (1) negligence of common law and (2) in breach of their duties under the Human Rights Act 1998 Article 2 or 3 EC.

HELD The Supreme Court upheld the Court of Appeal judgment by a 5-2 majority and dismissed the appeal on Duty of Care by Joanna’s Family; and crossed-appeal by police on Human Rights Act 1998 Art 2, concertedly.

REASON

• Negligence –
• Majority
  • Lord Toulson asserted that general principle in Common Law would be not imposing any liability on “careless omission” [98], with two exceptional circumstances:

1. “The first is 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.” [99]
2. “Where D assumes a positive responsibility to safeguard C under the Hedley Byrne principle…” [100]
   • Per Lord Toulson, Cryon was never under the control of police, void circumstance 1. He continued to explained which Mason did not fit into the circumstance 2 on ‘Assumption of Responsibility’ to Ms Michael because “the only assurance which the call handler gave to Ms Michael was that she would pass on the call to the South Wales Police. She gave no promise how quickly they would respond. She told Ms Michael that they would want to call her back and asked her to keep her phone free, but this did not amount to advising or instructing her to remain in her house, as was suggested”, contrary to Kent’s case “where the call handler gave misleading assurances that an ambulance would be arriving shortly.” [138]
   • In addition, Lord Toulson further rejected on both Intervener’s Liability Principle and Lord Bingham’s Liability Principle.
     • On ILP, “if the police are aware or ought reasonably to be aware of a threat to the life or physical safety of an identifiable person, or member of an identifiable small group…the police owe…that person a duty…to take reasonable care for their safety.’ [18](1)
       • First, why should there be constraint to particular victims/certain types of injury or harm but not others;
       • Second, it is speculative whether the addition of potential liability would make a practical difference to the conduct of police officers and support staff in domestic violence cases, and it is difficult to see that it would be in the public interest for the police to determine their priorities according to the risk of being sued.
       • Third, a significant financial implications if police were liable to compensate victims of violence on the basis that they should have prevented it.
       • Fourth, it is not necessary to develop the law of negligence to comply with the ECHR, arts 2 and 3, particularly as ECHR claims have different objectives from civil actions such as negligence.
     • On LBLP, “Alternatively, if a member of the public (A) furnishes a police officer (B) with apparently credible evidence that a third party whose identity and whereabouts are known presents a specific and imminent threat to his life or physical safety, does B owe to A a duty to take reasonable steps to assess such threat and, if appropriate, take reasonable steps to prevent it being executed? [18](2)
       • From his view, it would be unsatisfactory to draw dividing lines according to whether the threat is reported by the victim or by someone else, or whether the threat is credible and imminent or credible but not imminent, or whether the whereabouts of the person making the threat are known or unknown, or whether the threatened violence was to the victim’s person or property or both.
     • Minority
       • Lord Kerr held that Defendant (police) on the facts owe Duty of Care as there was clear establishment of Proximity between Claimant and Defendant by meeting the following elements [144]

1. a closeness of association between the Claimant and the defendant, which can be created by information communicated to the defendant but need not necessarily come into existence in that way;
2. the information should convey to the defendant that serious harm is likely to befall the intended victim if urgent action is not taken;
3. the defendant is a person or agency who might reasonably be expected to provide protection in those circumstances; and
4. he should be able to provide for the intended victim’s protection without unnecessary danger to himself.
   • Lady Hale agreed and further stated when proximity established under the Caparo Principle: police “know of an imminent threat of death or personal injury to a particular individual which they have the means to prevent..’ [197] it is then fair, just and reasonable for them to take reasonable care for harm prevention.

7. Name one article (from any jurisdiction) that discusses the UK Supreme Court’s decision in Michael. Provide a brief summary of what that article says.

ARTICLE Nichola Hodge, Police, ‘Negligence and the Elusive Special Ingredient: A Critical Analysis of Michael v Chief Constable of South Wales Police and the Lability of Police for the Actions of Third Parties’, [2018] 24 Canterbury L Rev 107

SUMMARY

Liability on a third has always been an contentious issues in Tort Law, whether or not individual should be liable for the conduct from a third party, particularly in cases on public bodies (e.g. professional rescuer) as not wanting to affect their administration by imposing liability (109).  The common law has made a distinctive separation between “a positive action” and “an omission” (109) and court will  presume of lack of insufficient proximity unless exceptions applies. However, it has been one of the most “contentious issue” (108) due to the inconsistent arbitrary line draw among public bodies in “acceptance of an emergency phone call” (110), such as ambulance service would established proximity in Kent on the basis that it is medical emergency related (111), yet decline the responsibility on fire service as it is uncontrollable of a fire, same as for police which a clear negligent was fold out, but liabilities was not asserted (112).

Liability Principle influenced from Hill, court indicated that “proximity was needed to go beyond mere foreseeability in order to establish a duty” and which policy concerns overrule to avoid creation of  “defensive administration” among police in which affected the “distribution of resources and diverting police attention from solving crimes” (113) Policy continue to demonstrate its impact and influence toward court decision based on rationale (1) Allocation of Resource in relation to which in avoidance to open the risk of floodgate in litigation, however it is lack of empirical research finding (118); (2) Defensive Administration which explained earlier with the supported on a UK survey from doctors on using some form of defensive medicine, yet it led to criticism without supporting evidence given it is based on emergency or medica service. Criticism raised and courts had as well rejected Hill’s justification (121).

In Michael, Lord Toulson shifted the focused from Policy to Proximity and rejected all examined principles that was brought: (1) The Intervener’s Principle (2) Lord Bingham’s Liability Principle (3) Lord Kerr’s Proximity Principle, (4) Hedley Byrne’s Assumption of Responsibility and had eluded from properly addressing the underlying issues/controversial, such as by literally interpretating Ms. Mason’s word and devoid of the entire context which held Mason did not owe a Duty of Care as she did not state explicitly that the police were coming: “stay in the House and lock your doors” but only said “are you able to lock your doors” and it diminished Mason and police’s responsibility toward Ms. Michael as there were no “purest assurance”. (128) The author expressed in favoured toward Lord Kerr principle which it could be used as an attractive alternative approach for case like Michael as it impose a duty by taking the following elements into proximity consideration: “stressful nature of the circumstances”, “limited information available to the police” and “urgency of the situation”(126 -127).

She further concluded which Proximity is not easy to be defined as in most cases as it overlapped which the courts has been applying “policy-lade approach” to determining proximity (129). Policy concerns still act as an “overarching principle” in defining police liability, with Proximity in scrutinising and restricting for future incidents. Michael case is a good indictor as it made it “harder for future litigation as court taken a narrow approach to these case” (131). Author holds a sceptical view that public will be taking their own risk to be relied on police since negligence omission on police remains to be seen (135) as it is uncertain on whether courts will be using a standardize legal principle (e.g. Caparo) in determining liability or solely rely upon assumptions made by earlier cases. (130)

Michael v Chief Constable of South Wales Police (2015).

8. In light of the UK Supreme Court’s decision in Michael, discuss what the likely outcome would be if Andrew were sued in negligence by Belinda in the following case:

Andrew is a police officer who has started having an affair with Belinda, who is married to Charlie. One night, Belinda rings Andrew to say that Charlie has found out about the affair, and that he is coming round to beat Andrew up, and that after he has done that he has said he will go back and ‘kill Belinda’. Andrew tells Belinda that he will ‘sort Charlie out’. As soon as he gets off the phone to Belinda, Andrew packs a bag, and drives his car to his best friend’s house and hides out there for a few days. After he is unable to find Andrew at home, Charlie goes back to his own home in a rage and beats Belinda, causing her to suffer very serious bodily harm.

OUTCOME

In the Belinda’s case which involved a public body official (police), the defendant Andrew, and issue in here is on (1) whether or not Belinda could sue Andrew in Negligence.

The general rule to establish Negligence is whether or not Duty of Care raised, between defendant Andrew and plaintiff Belinda. Referencing from Michael v Chief Constable of South Wales Police (2015), two cases are similar in parts which defendant was a public official and case was associated with domestic violence, still, I consider it is two distinctive cases, yet principles could be apply in Belinda’s case given it is a matter/issue related to Duty of Care.

Lord Toulson from Michael upheld conservative approach, argued and reinstated immunity for police which owe no Duty of Care toward claimants based on the rejection of the following principle.

• General principle in Common Law which recognised types of situation in which the common law may impose liability for a careless omission’ [98]:
  1. ‘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; [99]
  2. “Where D assumes a positive responsibility to safeguard C under the Hedley Byrne principle…” [100]

The material facts are that Belinda rang Andrew that Charlie found out their affair and Andrew was well communicated and understood Charlie will go back and ‘kill Belinda’ after he got his business done with Andrew himself, which the general principle (1)(a) has been met: a foreseeable action which Charlie will cause damage to Belinda and that Andrew had failed to take reasonable care in exercise both as a public authority and civilian, and hide at a friend place for few days. Andrew had as well established Assumption of Responsibility to (safeguard) Belinda (2)(b) which he told Belinda that ‘he will sort Charlie out’, provided an assurance to Belinda under Hedley Byrne principle that she could rely on him.

To further support, Proximity held by Lord Kerr and Lady Hale within Michael was an dissented opinion, yet believe it has sufficient credibility on the current case given (1) it is a novel situation compare to the precedent thus Caparo Test could be applied and (2) it has shift from police official to civilian individual (Andrew). Andrew had (1) established a closeness of associate which information “Kill Belinda” (2) had conveyed to Andrew and he was well aware that serious harm will likely to take place which requires his urgent action. Andrew as an law enforcement agency and Belinda’s partner, competent and (3)(4) capable in foreseeing the potential threat yet failed to utilise his knowledge and skillset in providing any protection to Belinda, and fled away and hide. If protection been executed by Andrew with his authoritative power or seek from external help (report to police department), the harm could be minimised or completely prevented.

In conclusion, with supports from above, it is fair, just and reasonable that Andrew should owe Belinda a Duty of Care. In additional, with which the current case focus largely on Andrew but Battery could as well be carried out by Belinda toward her husband Charlie particularly he had caused her direct bodily harm. If the case had been prosecuted by DPP and conviction been established, Belinda could subsequently sue the husband in Tort for additional remedies.

9. Comment on whether you think the decision of the UK Supreme Court in Michael with regard to the claim in negligence was correct or not.

COMMENT

In United Kingdom, police does owe a duty for preservation for the Queen’s peace [29] and under Police Reform Act 2002 that they should act “with fairness, integrity, diligence and impartiality, upholding fundamental human rights … cause the peace to be kept and preserved and prevent all offences against people and property [34] However, controversial raises among from court cases in regards to police “immunity” shielded from common law system [44].

Michael  was one of a tragic yet landmark case related on whether or not public bodies, particular police, owe the victim a duty of care. This case had a greater impact in common law system in approaching to determining the existence of Duty of Care in policed-related cases. The court judgement I regards as correct but with wrong reasons which might partly associated with the general practice followed a rather conservative approach based on precedents cases under common law system and by imposing liability in police with tendency to adopt a defensive mechanism diminish the public security.

1. Policy Consideration

“Blanket Immunity” [148] in Hill had followed through and governed courts’ decision in not just UK but other location such as: Irish [94] and USA[83]. The preponderant policy considerations was largely related in minimising the potential consequential development on “defensive frame of mind” after imposing liability on police for mistakes, in result with “significant diversion of manpower and attention from their most important function.” [43] Michael’s case was 5-2, led by Lord Toulson in dismissing 2 appeals and policy consideration had been an underlying factors embedded in this case, practiced as a general rule. [182]

Case like Hill and Michael illustrated a fundamental issue on placing imbalance weight at policy into case consideration. For courts and judges, it might be difficult in predicting the consequence with liability imposition on police negligence, yet, concerns should be yield and avoid applying policy as a refusal on recognized liabilities [184]. Researches did indicate which “police cadets express troubling anxiety over the possibility of being sued”, however, other studies stood in the opposite direction which officials are concern of the job that civil liability would not actually affect their performance, and at certain level, lawsuits might help in re-recognizing, re-empathizing and more aware of the responsibilities and provide a receptive resolution/changes in later performance [Nichola, 120]. The research might be a good reference for courts in taking a broader and might best served according on a case by case basis instead of on mere generalities from binding precedents.

“The development of the law of negligence has been by an incremental process rather than giant steps” [101] and policy definitely still owning its space toward court’s decision within the UK common caw system. More, Parliament might as well emulate New Zealand on establishing similar act like the Accident Compensation Act 2001 as it proved to carry a significant decrease on negligence omission related cases. [Nichola,132] It is a comprehensive legislation that guides the law around injury prevention, rehabilitation and entitlements for injuries both in general and at work; in addition, New Zealand has taken a generous and broad approach to the negligence related cases [Nichola, 134]. It is remains to be seen whether Parliament will seek to establish schemes that taken and base on types of crime, types of loss and any financial limits into consideration [130].

2. Principle Application

Proximity lay as the core discussion within Michael: how to define, which principle serve the best in applying for the case to determine if the duty of care should or not be owe from police to Ms Michael. In fact, majority of precedent cases relied upon the use of policy to determine if it is fair, just and reasonable to impose duty of care. Lord Keith from Hill upheld which “police owes no duty of care” because if there is no general duty of care was owed to individual members of the public to prevent the escape of a known criminal, it then should equally impose the same to public bodies (e.g police) [41] and it overrule cases like Smith and Van Colle under policy concern. As stated in part 1, policy consideration was probably formidable that overruled three principles which been applied within Michael. However, to reaffirm and suggest, the weight should focused on the general rule of law and facts of the case; thus a reformulation might be required in the absence of Duty of Care stated by Lord Steyn from Brooks [148].

Per Lord Kerr’s understanding which the concept of proximity more or less depends on court’s perception toward legal principle and the lay out facts of the case to impose liabilities, [160] and referencing to earlier judgement that been made. However, instead of binding with other analogical case that taken policy as centric factor ultimately, Lord Kerr instead established a newly Lord Kerr’ Proximity Principle, which I personally in favour as the proposition of the principle focused on determining and tackling the core issue that been controversial in analogical: if relationship has sufficient closeness (proximity) to amount to proximity and which was the centric argument on Michael’s case [133], and it was as well lacking from Hill’s argument. Lord Toulson did rule out the principle and commented as “circular” [133] that leaves an open ended question of closeness or proximity.

The nature of his principle “Proximity of Relationship” was based on the interaction between parties to determine existence of proximity/closeness, on a case by case basis and exclude generality [132]. It aims to help ensuring and facilitating “a balancing of the Plaintiff’s moral claim to compensation for avoidable harm and the defendant’s moral claim to be protected from an undue burden of legal responsibility” [147]. Base on his principle, a close examination of all the circumstances would be required to establish proximity within a relationship, which specific type of information and threat imminent became to prerequisites on the establishment of a proximity relationship: as long as police know “of an imminent threat to a particular individual and that they have the means of preventing that threat and protecting the individual concerned” [168]. People might argued which the stand point which taken in a case to case basis wouldn’t be causing more duties for both court and judges given one of the highlight within Common Law system was precedent reference. However, what merit or essential isn’t about the deciding per case, but such approach offered by Lord Kerr should be apply base on “particular circumstance” in analysing the whole situation to make a conclusion, uphold a fair, just, and reasonable judgement for plaintiff and defendant, rather a “blanket immunity” that biased on police force.

Michael v Chief Constable of South Wales Police (2015).

materials2：24CanterburyLRev107 materials 1： Michael and others v Chief Constable of South Wales Pol

Harvard style.

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