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

• Author: Nichola Hodge
• Position: LLB(Hons), University of Canterbury
• Pages: 107-135

107

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.

N H*

“When I use a word,” Humpty Dumpty said, in rather a

scornful tone, “itmeans just what I choose it to mean -

neither more nor less.”

A

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endorsed outdated policy concerns and did not give adequate consideration to the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 Canterbury. is article is based on an Honours dissertation. 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.

108Cante 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 raise 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 the

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 analysis will focus on the policy and proximity arguments

used by the majority. Part IV will briey examine 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 party has always been a contentious

issue in tort law and is not lightly imposed.3 It raises the 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

stage).4 While courts vary 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.