10 Reasons to Reject Unique Public Duties of Care in Negligence

Abstract

In Michael v. the 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 to 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. Michael has been described as one of the most important negligence decisions ever rendered in UK law. Although the SCC has created unique public duties, the case for doing so has never been evaluated. This article considers 10 reasons why the Canadian courts should no longer create unique public duties. Two reasons are particularly compelling. First, the “Good Public Samaritan” principle created in Anns and followed unreflectively in Canada constitutes an objectionable and unworkable intrusion by the courts on the prerogative of the legislatures. Second, unique public duties are unnecessary to do justice in a case like Michael. The Canadian courts would probably have permitted the Michael case to go to trial based on ordinary negligence principles that apply to private parties; specifically, those based on an assumption of responsibility.

Keywords: negligence, duty, government liability, public authority liability, police liability, separation of powers, addirmative duties of care, tort