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The Law of Negligence and the Human Rights Act: Michael v Chief Constable

The Supreme Court has considered the interaction between the law of negligence and the Human Rights Act in the case of Michael v Chief Constable of South Wales [2015] UKSC 2 in which judgment has just been given.

The case concerned an argument that there should be a common law duty of care in negligence where the police knew or should have known that a specific member of the public was at risk as to her life or physical safety. There had been an emergency call and the victim had been killed while waiting for police to arrive. Due to miscommunication, the call was not given as prompt attention as it should have been and this was criticised by the police inquiry.  However, following the leading cases of Hill v Chief Constable of West Yorkshire [1989] AC 53 and Smith v Chief Constable of Sussex Police [2008] UKHL 50, [2009] 1 AC 225, the Court had held that the police had no liability in negligence.

The Supreme Court agreed. The police in general terms do not owe a duty of care to members of the public. They may in some individual cases have accepted a responsibility to specific persons, but they had not done so in this case.

The Supreme Court was in particular invited to develop the law of negligence to give effect to the duties under the European Convention to protect life (Article 2) and prevent serious harm (Article 3). The Court declined to do so, although there were dissents from Lord Kerr and Lady Hale on this point.

In the majority judgment, given by Lord Toulson, he confirmed that whilst there have been areas where English private law has developed to give effect to Convention rights, most notably the law relating to privacy, this was where it was necessary for the law to comply with the Convention as it would otherwise be deficient [124]. There is no need to develop the law of negligence to give effect to Article 2 and 3 since there is an adequate remedy for these in an action under the Act, with different time limits and approaches to damages. This does not need to be duplicated by the common law. If the remedy under the HR Act is considered to be inadequate, it should be remedied by Parliament, and not by the courts, since the police already have a duty to comply with Article 2 and 3 [129-130].

However, the Court did consider unanimously that the victim’s family’s claim under the Human Rights Act could continue. Thus, a party can claim for a breach of Article 2 or Article 3 under the Act, but not through the law of negligence.

The Supreme Court has confirmed a particular approach to the place of the Act in our private law – namely, that it does not necessarily require the common law to be developed to match it (for further discussion, see the relevant chapters in the book ‘The Impact of the Human Rights Act on Private Law’ (Cambridge, 2011))

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