Author:Feldthusen, Bruce
Position:United Kingdom, Canada - Forum: Issues in Administrative and Constitutional Law

1. Introduction

In Michael v Constable of South Wales the Supreme Court of the United Kingdom ('UKSC') upheld the striking out of a negligence action brought by the estate of a murdered victim of domestic violence. (1) Ms. Michael's ex-partner, Williams, discovered her in bed with another man. Williams hit her, left to take the other man into town, and told her he would return to kill her. Michael made an emergency telephone call to the police. Her call was misrouted to the neighbouring county and answered by a police operator, Ms. Mason. Michael described the attack and told Mason that Williams was going to kill her. Mason told Michael she would notify the police force in Michael's area. She logged the call as "Grade 1," which meant a response within 5 minutes was required. However, when Mason contacted Gould, the police operator in Michael's area, she neglected to mention that Michael was in fear for her life. Gould therefore logged the call as "Grade 2," which meant a response within an hour. Michael called a second time about 15 minutes after her first call. There were screams on the line and then the call ended. The event was then upgraded to "Grade 1." The police arrived at Michael's home 22 minutes after her first call and discovered that Williams had brutally stabbed Michael to death. Had the police not bungled her first call, it seems likely that the claimants could have established that the police would have been able to save Michael's life. Williams pleaded guilty to murder and was sentenced to life imprisonment. Mason and Gould faced disciplinary action. The Independent Police Complaints Commission issued a report strongly criticizing Mason for breaching internal policy by failing to obtain critical information from Michael. The police force in Michael's area was criticized for failing to respond immediately upon receiving the report from Mason, given that so much critical information was missing. (2) Nevertheless, in a 5-2 decision the UKSC dismissed an action in negligence, brought on behalf of Michael's parents and children, seeking damages against the Chief Constables of both counties.

The majority in Michael displayed little interest in Ms. Michael's experience. Instead, it focussed on affirming a fundamental principle of UK law: that a common law duty of care in negligence can never be founded on a statutory duty or power alone. Michael holds that the courts should not recognize unique public duties of care. A unique public duty is one that is imposed on governments or other public defendants where no such duty would be imposed on a private party in the same or an analogous situation. (3) Instead, the liability of public defendants must be based on the application of ordinary private law principles. McBride calls this the Diceyan principle. (4) Public actors should be "under the same (emphasis added) law that applies to private citizens," a principle Dicey called the "idea of equality." (5)

Like the Michael decision, this article does not deal primarily with the social problem of domestic violence. It does shed some light on the question of police responsibilities to potential victims of crime who reach them on emergency hotlines. However, the primary focus is on unique duties of care, with Michael serving as a provocative background against which to evaluate the arguments. I believe that Ms. Michael's family was entitled to a remedy in tort. I do not believe it would be necessary in Canada to create a unique public duty to provide one.

Public defendants owe the same duties of care as do private citizens. (6) In Section 2, I will review the basic law of negligence pertaining to the failure of one private party to confer a benefit on another. (7) The general rule is that one private party does not owe an affirmative duty to confer a benefit upon another. (8) There are numerous exceptions to this "no duty" rule. Canadian courts probably recognize a broader range of exceptions, and apply them less strictly than do courts in the UK.

Section 3 suggests that Michael would have been decided differently in Canada, (9) and possibly should have been decided differently in the UK, based on basic private party negligence law. The Michael claim ought to have been allowed to proceed to trial. There is a sound case that the claimants could have established that the police assumed responsibility to Ms. Michael. If necessary, they might also have been able to establish that she relied on the police to her detriment. This is an important conclusion because it demonstrates that basic negligence law is not as impotent in the face of domestic abuse as Michael suggests it is in the UK. It also shows that basic negligence law can take into account unique aspects of government conduct without creating unique public duties of care. (10)

Sections 4 and 5 consider the alternative argument: assuming that the facts will not support a duty in private party negligence law, when, if ever, ought the law to recognize unique public duties. (11) Section 4 considers arguments in favour of unique duties that are grounded in what McBride calls the "policy approach" derived from the Anns case. (12) Characteristic of this approach is a presumption that government owes a duty to provide benefits to its citizens at a standard of reasonable care unless there are good reasons to deny or limit the duty. (13) McBride notes that the policy approach often has resulted in the same outcome--no unique public duty--as the Diceyan approach. (14) The sympathetic facts in Michael are useful to illustrate the issues. Section 5 considers the possibility of unique public duties of care in narrowly defined specific circumstances.

Although Anns has been overruled in the UK, (15) Canada continues to follow robustly the Anns policy approach to duty of care. (16) Not surprisingly, therefore, the Supreme Court of Canada ('the Supreme Court') has recognized at least 5 unique public duties of care. (17) The Supreme Court also purports to follow the same rule as the UKSC, that a common law duty of care cannot be imposed on public authorities based on the words of the enabling statutes alone. (18) Yet it is difficult to explain the recognized unique public duties otherwise. Rarely has the court acknowledged that is creating a unique public duty of care and never has it discussed explicitly and fully whether it is appropriate to do so, as did the court in Michael. There may exist a principled justification for imposing unique public duties, but it has never been put forth as such. Instead, I will suggest that the unique duties that Canada does recognize have emerged on an ad hoc basis, in the process damaging the critical structure of common law adjudication.

Issues surrounding unique public duties are sometimes confused with issues surrounding government immunity for high level policy decisions. (19) This is probably because both are concerned with respecting the separation of powers between the legislative bodies and the courts. However, there is a fundamental difference. A case for immunity only arises when the public defendant would otherwise be liable for breaching a recognized duty of care. (20) Immunity is a concept employed to reduce government responsibility for otherwise negligent conduct below the level of responsibility owed to others by private citizens. In contrast, unique public duties arise by definition only when the conduct at issue is not governed by ordinary private party negligence law. Whereas a claim of immunity seeks special exculpatory treatment, a unique public duty is an additional duty owed only by the public defendant. The objection to a unique public duty is that it violates Dicey's equality principle. (21) There is no other duty from which immunity could be sought. (22)

Although "duty of care" is a classic common law negligence question, unique public duties of care raise important questions about the separation of powers in constitutional law. When courts create unique public duties of care, I will argue that they appropriate unilaterally powers that previously and properly belonged to the legislative branch. (23) I will argue that the law of negligence ought not to recognize unique public duties of care unless a principled justification that does not prove to be over-broad can be identified. No doubt there are compelling counter-arguments. (24) Canadian law would benefit if these came forth explicitly.

2. The Duty to Confer Benefits in Private Party Negligence Law

To evaluate the case for unique public duties of care it is necessary to identify the principles that govern duties to provide benefits between private parties. (25) The general rule in negligence is that one private party does not owe an affirmative duty to confer benefits upon another. I will refer to this as the "no duty" rule. There are numerous exceptions. Some are unclear or contentious. Many overlap. Authors and courts classify the exceptions differently.

  1. Defendant by his Fault Creates a Situation of Peril

    When a defendant by his fault creates a situation of peril, the defendant comes under a duty to protect the person so-imperilled. (26) Strictly speaking, this is not an exception to the "no duty" rule. The "no duty" rule does not apply to misfeasance that causes physical harm. However, the creation of the new peril frequently occurs in the course of providing a benefit to another. In Hampshire, for example, a fire department was held liable based on its decision during its intervention to turn off the sprinkler system. Turning off the sprinklers made the fire damage more extensive than it would have been had they done nothing. The department was held liable for the additional damage. (27) In Zelenko v Gimbel Brothers the defendant removed the ill plaintiff to a place where no one else could help him. The fresh harm was the defendant's denying the plaintiff other aid. (28) There is no reason to distinguish making someone worse off by denying...

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