Michael and others v The Chief Constable of South Wales Police and another

This appeal concerns whether the police owed a private law duty of care to a woman who telephoned 999 shortly before she was murdered. The claims proceeded in negligence and under the Human Rights Act 1998. The Court was asked to decide whether established authorities (notably Hill v Chief Constable of West Yorkshire [1989] AC 53, Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24, and the combined appeals in Van Colle and Smith [2009] AC 225) preclude recognition of a private duty to individuals, or whether exceptions apply (assumption of responsibility, control over the wrongdoer or sufficient proximity).

The Court was required to assume the claimants’ factual allegations for present purposes and to determine as a matter of law whether a real prospect of success remained on the pleaded negligence and article 2 claims. The appeal challenged the Court of Appeal’s summary judgment on the negligence claim; the police cross-appealed the Court of Appeal’s decision allowing the article 2 claim to proceed.

The central issue before the court was whether the police’s handling of the 999 call and any communication from the call handler could found an assumption of responsibility or otherwise create the proximity necessary to give rise to a duty of care in negligence, and whether an arguable article 2 positive obligation remained.

Disposition: The majority (Lord Toulson with whom Lords Neuberger, Mance, Reed and Hodge agreed) dismissed the appellants’ appeal and the police cross-appeal, holding that no new general duty in negligence should be recognised; the article 2 claim was to proceed to trial on the basis of existing Strasbourg and domestic law. Lords Kerr, Hale and Lady Hale (and some other members) gave reasoned judgments, Lord Kerr and Lady Hale would have allowed the negligence appeal (finding sufficient proximity or that the law should develop) but Lord Toulson’s majority view is the ratio.

1. There is no general private law duty on the police to protect individuals from the criminal acts of third parties; the established starting point is the public law duty to preserve the peace. The ordinary exceptions to liability for omissions remain applicable: control over the wrongdoer (Dorset Yacht) and assumption of responsibility (Hedley Byrne/Spring). (paras 29-41; 96-106).
2. The proper test for imposing a duty of care remains the Caparo triad: foreseeability, sufficient proximity and whether imposing a duty is fair, just and reasonable. Policy considerations identified in earlier authorities are relevant to the latter inquiry but do not create a ‘blanket immunity’. (paras 106-116; 152-156).
3. The court should not create a new broad ‘interveners’ liability’ for potential victims of domestic violence or adopt Lord Bingham’s generalised liability principle from his dissent in Smith. The arguments for change based on social policy, international instruments or the Human Rights Act are not, on the material before the court, adequate reasons to extend the common law in the way proposed; any such wider reform should be for Parliament. (paras 117-131; 123-131).
paras 100-101; 138).
4. The article 2 issue raises triable questions of fact (whether the call handler should or did hear a death threat and whether a real and immediate risk was apparent). Those questions should be determined at trial; the cross-appeal against the Court of Appeal’s refusal to strike out the article 2 claim fails. (paras 54-56; 139).
5. Summary: no extension of the common law duty in negligence was made by the majority; the human rights claim proceeds to trial. (paras 140).

• Supreme Court (this court): Appeal heard; majority dismissed the negligence appeal and dismissed the cross-appeal on Article 2 (trial to proceed) (Judgment: [2015] UKSC 2).
• Court of Appeal: Longmore LJ (majority) held summary judgment for defendants on negligence; majority allowed article 2 claim to proceed, Davis LJ dissenting ([2012] EWCA Civ 981).
• High Court (Queen’s Bench, HHJ Jarman QC): refused summary judgment/strike out on negligence and article 2 claims (first instance decision referenced in the report).