Bungled Police Emergency Calls and the Problems with Unique Duties of Care
(2017) 68 UNBLJ, Forthcoming
29 Pages Posted: 27 Feb 2017 Last revised: 25 Mar 2017
Date Written: December 1, 2016
Abstract
In Michael v The Chief Constable of South Wales Police the UKSC struck out a fatal accidents claim brought by the family of a victim of domestic abuse. Two different police forces bungled Ms Michael’s calls for help on the emergency line immediately before she was murdered. The claim failed because the court held that the law ought not to recognize unique public duties of care, that is duties not owed by similarly situated private defendants in ordinary negligence law. Michael has been described as one of the most important negligence decisions ever rendered in UK law. Yet the question of unique public duties is generally ignored in Canada.
This article explores first the complicated Canadian law of negligence governing duties to provide benefits to another. It concludes that Canadian courts would probably have permitted the Michael case to go to trial based on the ordinary principles that apply to private parties. Specifically, it bases this conclusion on an enriched notion of “assumption of responsibility” emerging from recent rights-based scholarship. The article concludes by considering the alternative argument that lies at the core of the Michael decision. Ought the courts to create a unique public duty that would have applied to the police in Michael? It concludes that unique public duties of care constitute an objectionable and unworkable intrusion by the courts on the prerogative of the legislatures. Fortunately, ordinary Canadian negligence law is sufficiently adaptive to deal with cases like Michael without needing to create a unique duty of care.
Keywords: torts, constitutional law, separation of powers, unique duties of care, government liability
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