Michael v Chief Constable of South Wales Police

The Supreme Court considered whether the police owed a private law duty of care in negligence to an identified victim who telephoned 999 and whether the article 2 Human Rights Act claim could proceed. The majority held that the common law does not support the creation of a new category of duty of care as contended for by the appellants or interveners (the so-called interveners’ liability principle or Lord Bingham’s liability principle), and that established exceptions (control of the wrongdoer or an assumption of responsibility under Hedley Byrne) remain the appropriate bases for liability. The court found that on the pleaded facts no assumption of responsibility by the Gwent call handler was made, and so the negligence claim could not proceed. By contrast the majority held that the article 2 claim raised triable factual issues and should proceed to trial.

This action arose from the murder of Joanna Michael after a 999 call which was routed to Gwent Police before being passed to South Wales Police. Ms Michael’s parents and her two children sued both Chief Constables in negligence and under the Human Rights Act 1998 (article 2), seeking damages for failings in the police response. At first instance Judge Jarman refused summary disposal of the negligence and article 2 claims. The Court of Appeal ([2012] EWCA Civ 981) granted summary judgment for the defendants on the negligence claim but allowed the article 2 claim to proceed. The appellants appealed on the negligence point and the police cross-appealed against the decision to permit the article 2 claim to proceed.

Issues for this Court included: (1) whether the court should recognise a novel duty of care to identifiable potential victims of violence (the interveners’ liability principle); (2) whether Lord Bingham’s narrower formulation (liability where a member of the public furnishes the police with apparently credible evidence of a specific and imminent threat from a third party whose identity and whereabouts are known) should be imposed; (3) whether the Gwent call handler’s statements amounted to an assumption of responsibility sufficient to found a Hedley Byrne claim; and (4) whether the article 2 claim should be struck out.

The majority (Toulson P with Neuberger, Mance, Reed and Hodge JJs) rejected expansion of the common law to impose the proposed new duties. The court reviewed the authorities (including Hill, Brooks, Van Colle/Smith, Caparo, Dorset Yacht and Hedley Byrne), emphasising that exceptions to the general rule on omissions remain limited to control over the wrongdoer or a genuine assumption of responsibility. The court declined to develop a duty limited to domestic violence victims or to create a duty simply to mirror Convention obligations. Applying those principles, the majority held that the call handler had only said she would pass the call to South Wales Police and had given no assurance as to the speed or mode of response; consequently an assumption of responsibility was not established and the negligence claim failed. On article 2, the majority concluded that factual issues (what the call handler heard and ought to have done) made dismissal inappropriate and that the claim should proceed to trial.

Lord Kerr and Lady Hale dissented on the negligence point. They would have recognised a more limited common law duty where the police know or ought to know of a specific, imminent threat to an identifiable individual whom they are able to protect, and they considered that on the pleaded facts a sufficient proximity existed to permit the negligence claim to proceed. Both dissenters would, however, have dismissed the police cross-appeal and left the article 2 claim for trial.

Appeal dismissed; cross-appeal dismissed. The majority held that the common law should not be extended to create a general duty to potential victims of violence beyond established exceptions (control of the wrongdoer or an assumption of responsibility under Hedley Byrne). On the pleaded facts no assumption of responsibility was made by the Gwent call handler and the negligence claim cannot proceed; by contrast the article 2 claim raises triable factual issues and remains for trial.

First instance: His Honour Judge Jarman QC refused summary disposal of the negligence and article 2 claims. Court of Appeal: [2012] EWCA Civ 981 — allowed summary judgment for defendants on negligence claim (Longmore LJ) and majority allowed the article 2 claim to proceed (Davis LJ dissenting). Supreme Court: [2015] UKSC 2 (this judgment).