New Judgment: Michael & Ors v The Chief Constable of South Wales Police & Anor  UKSC 2
28 Wednesday Jan 2015
On appeal from:  EWCA Civ 981.
The Supreme Court dismissed the appellants’ appeal by a majority of 5-2 against an alleged delayed response to a threat to life call which should have required an immediate response. The result of that alleged delay was that the appellant’s daughter and mother, Ms Michael, was stabbed to death before the police arrived on the scene. The appellants appealed against the Court of Appeal decision that there should be a summary judgment for the respondents on the claim that the police were liable in negligence. The respondents also appealed to the Supreme Court against the Court of Appeal’s decision to allow the claim under the ECHR, art 2, to proceed to trial. The Supreme Court unanimously rejected this cross-appeal.
In presenting the majority ruling for dismissing the appellant’s case, Lord Toulson, having surveyed the case law, rejected the arguments that the police owe a duty of care in negligence where (i) they are aware or ought reasonably be aware of a threat to the life or physical safety of an identifiable person, or member of an identifiable small group (Interveners’ Liability Principle); or alternatively (ii) a member of the public gives the police apparently credible evidence that an identifiable third party presents a specific and imminent threat to his life or physical safety. He stated it was hard to see why the duty should be confined to physical injury or death and it was speculative whether the duty would improve the performance in domestic violence cases as well as not being in the public interest for police to prioritise responses by the risk of being sued. He also stated that the Liability Principle would be unsatisfactory in drawing lines between who reports the threat, whether it is imminent, whether the threat-maker is known and whether the threat was aimed at physical injury.
In presenting the dissenting arguments, Lord Kerr stated that there should be a recognised sufficient proximity of relationship, such as to create a duty on the police in negligence, where (i) there is a closeness of association between the claimant and the defendant, such as where information is communicated; (ii) the information should convey that serious harm is likely to befall the intended victim if urgent action is not taken; (iii) the defendant is a person or agency who might reasonably be expected to provide protection in those circumstances; and (iv) the defendant should be able to provide for the intended victim’s protection without unnecessary danger to himself. Lord Kerr highlighted that there was clearly a proximity of relationship between the respondent and Ms Michael. He also stated that the general rule that there is no duty to protect others from third party harm is not appropriate for members of a force whose duty it is to provide protection. Lady Hale supported Lord Kerr’s dissenting analysis