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

AuthorNichola Hodge
PositionLLB(Hons), University of Canterbury
N H*
“When I use a word,” Humpty Dumpty said, in rather a
scornful tone, “itmea ns just what I choose it to mean -
neither more nor les s.”
e liability of the police for the actions of third parties is a contentious area
of tortious law. While the original justications for declining liability were
arguably reasonable and pragmatic, the courts’ reluctance to allow for exceptions,
even in cases of clear negligence, has been the subject of controversy. is article
argues that the original policy issues discussed in dicta by Lord Keith in Hill v
Chief Constable of West Yorkshire, have been stretched by subsequent courts to
encompass increasingly distinguishable cases, which has caused controversy. e
2015 United Kingdom’s Supreme Court decision of Michael v Chief Constable
of South Wales arguably shut the door to any prospect of changing the courts’
conservative approach to police liability. While there were two powerful dissents
given by Lord Kerr and Lady Hale, the m ajority, led by Lord Toulson, declined to
nd a duty of care holding that the police had not assumed responsibility towards
the victim. is article argues that the Supreme Court’s decision in Michael
endorsed outdated policy concerns and did not give adequate consideration to the
proximity arguments advanced before the Court. is article concludes that in
certain situations the police should be liable for the actions of third parties.
I 
From an early age, we are conditioned to the idea that the emergency
services will respond to our cry for help. Emergency numbers are a core
component of modern society. ey are supposed to be a predictable,
* LLB(Hons), University of Ca nterbury. is ar ticle is based on a n Honours disser tation. I
would like to tha nk my supervisor, Professor Stephe n Todd, and the anony mous reviewer for
their helpful c omments. All errors or omission s are my own.
108 Cante rbury Law Review [Vol 24, 2018]
consistent and pragmatic source of help. Regardless of whether you have ever
called an emergency number, you will undoubtedly know the formula that
the conversation will follow. We have seen it play out countless times on our
television screens. But what happens when the operator strays from the script;
when it is not clear if help is on its way? What happens if, in an emergency,
the police are negligent? is is the question that fell before the Supreme
Court of the United Kingdom in the tragic case of Michael v Chief Constable
of South Wales Police (Michael).1
Michael is the most recent in a series of cases which ra ise complex issues
around the liability of public bodies for negligence. In a majority judgment
of 5:2, the Court followed a conservative trend and held that the police did
not owe a duty of care to the victim of a negligent omission by police. Lord
Toulson gave the judgment for the majority, with Lord Kerr and Lady Hale in
dissent. is article will argue that Michael was incorrectly decided, that t he
courts have gone beyond the scope of the decision in Hill v Chief Constable
of West Yorkshire (Hill),2 and have based their judgments on a awed policy
analysis which has arbitrarily restricted the scope of proximity and led to
inconsistency and divergence in the common law. Part I will discuss the
rationale and original position of liability for third parties and emergency
bodies for negligent nonfeasance. Part II w ill examine previous case s involving
the liability of police for the actions of third pa rties before Michael is analysed
in Part III. is ana lysis will focus on the policy and proximity argu ments
used by the majority. Part IV will briey exam ine alternative remedies to an
action in negligence and Part V will consider the implications of Michael in
a New Zealand context.
I. O  T P
A. Liability for third parties
Liability for the actions of a third par ty has always been a contentious
issue in tort law and is not lightly imposed.3 It raises t he issue of whether an
individual should be held liable for the actions of another. Duties arising in
novel situations are evaluated by reference to the threefold Caparo Industries
plc v Dickman (Caparo) test of reasonable proximity, foreseeability and
assessment of how fair, just and reasonable it is to impose a duty (the policy
sta ge).4 W hile courts va ry as to the emphasis they place on each stage of the
inquiry, the result is normally the same.5
1 Michael v Chief Con stable of South Wales Police [2015] UKSC 2, [2015] AC 1732.
2 Hill v Chief Constab le of West Yorkshire [1989] AC 53 (HL).
3 Stephen Todd “Negligence: e Dut y of Care” in Stephen Todd (ed) e Law of Torts in New
Zealand (7th ed, omas Reuter s, Wellington, 2016) 147 at 185.
4 Caparo Industr ies plc v Dickman [1990] 2 AC 605 (HL) at 618.
5 Nicholas J McBride “Michael and the f uture of tort law” (2016) PN 32(1) 14 at 15–16.

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