Law and science

Michael & Ors v Chief Constable of South Wales & Anor (2015)

[2015] UKSC 2

SC (Lord Neuberger PSC, Lady Hale DPSC, Lord Mance JSC, Lord Kerr JSC, Lord Reed JSC, Lord Toulson JSC, Lord Hodge JSC) 28/01/2015

F made an appeal against a decision of the court allowing summary judgment for the respondent, the Chief Constables, in respect of her claim for negligence against the police. The Chief Constables cross-appealed the decision that F’s claim should proceed to trial under Article 2 of the ECHR.

F was the administratrix of the estate of M, the deceased. M lived in South Wales and made a 999 call to the police from her home address. She told the police operator in Gwent that her ex-partner had assaulted her, and that he had left her home address but had threatened to return to kill her. There was a dispute as to what the operator heard F say and whether it was ‘kill’ or ‘hit’. Thereafter, the operator passed the information on to South Wales police, but did not include the information relating to a threat to kill. As a consequence, South Wales police downgraded the priority of the call and therefore an immediate response was not necessary.

M telephoned the police again 15 minutes after the initial telephone call to the police, and she could be heard screaming by the operator. The police arrived at the scene eight minutes later to find that she had been killed by her ex-partner. There were also data on the police file confirming that there was a history of domestic violence.

F instigated a claim against Gwent and South Wales police for negligence and a claim under Article 2 of the ECHR. The Court of Appeal granted summary judgment to the police in respect of the negligence claim, but held that the Article 2 claim should proceed to trial. The main arguments were whether the police owed a common law duty of care to M, had assumed responsibility to take reasonable care for her safety and if they had breached Article 2 of the ECHR.

In respect of the first issue it was held that the police did not owe M a duty of care in respect of her safety or the threat to her life. ‘English law did not impose liability for injury or damage caused by a third party. The court’s refusal to impose a private law duty on the police to exercise reasonable care to safeguard potential victims of crime, except where there had been a representation and reliance, was consistent with the way in which the common law applied to other authorities vested with powers or duties for the protection of the public. No exception was to be made to the ordinary common law principles so as to cover the facts of the incident case’. It was also made clear that the duty of care by the police owed to members of the public at large did not include the kind of proximity required for the imposition of a private law duty of care reference was also made to the significant financial implications for the police and the public purse should such a duty be imposed.

The other question was in circumstances where a member of the public gave to the police evidence that another person whose identity and whereabouts were known had presented ‘an imminent threat to her life or physical safety’, and whether the police owed a duty of care to take reasonable steps to assess such a threat and prevent it being executed. It was found that no such duty was owed and reference was made as to whether a public compensation scheme for such victims where there had been an admission by the police was for parliament to decide. It was also held that the operator had not said anything to M to give rise to an assumption of such responsibility. Nor had she promised how quickly South Wales police would respond to the call, and she had not said anything to M to advise her to stay in the property.

In respect of the Article 2 claim in the given circumstances, it was whether the operator ought to have heard M say that there had been a threat to kill, and this was a question of fact. It would be very rare for the incident court to reverse concurrent findings of the two lower courts on a question of fact, and what the operator should have made of the 999 call was properly a matter for investigation at trial.

F’s appeal was dismissed, and the Chief Constables’ cross-appeal was also dismissed.

Diann Blankley (by her litigation friend Andrew Cusworth) v Central Manchester & Manchester Children’s University Hospitals NHS Trust (2015)

[2015] EWCA Civ 18

CA (Civ Div) (Richards LJ, McCombe LJ, Sharp LJ) 27/01/2015

The claimant, B, suffered a brain injury after undergoing surgery at the defendant Trust’s hospital, M. She did not have capacity, and a litigation friend pursued a claim for clinical negligence on her behalf. Issues pertaining to liability were agreed with damages to be assessed thereafter.

During the course of the litigation, B regained capacity and was thereafter able to enter into a conditional fee agreement to cover the assessment of quantum. The conditional fee agreement confirmed that she was responsible for giving her solicitors sufficient instructions to enable them to perform their work, and that, if the agreement ended early, the solicitors reserved the right to require her to pay their charges and any barristers fees.

B lost capacity two years later, and her solicitor was appointed as her receiver and acted as her litigation friend. The court proceedings concluded three years later, and B’s solicitors submitted their bill of costs to M. M’s case was that the conditional fee agreement had automatically terminated as a result of B’s loss of capacity, therefore leaving her solicitors without a valid retainer. M’s argument was accepted by the costs judge. The lower court allowed B’s appeal and found that her supervening incapacity had not ‘frustrated or otherwise terminated the conditional fee agreement especially as it had been entered into in the knowledge that B had fluctuating capacity’.

M argued that the decision was contrary to the principle in Yonge v Toynbee [1910] 1 KB 215 in that supervening incapacity terminated an agent’s authority. It was also argued that a solicitor’s retainer was a personal contract in which the duty to give instructions could only be discharged personally. B argued that even if a client had a general duty to provide instructions personally, any such duty could not have been intended in this case, especially where the solicitors had foreseen that B might lose capacity again, and they questioned the case of Yonge.

It was held that the judge had been correct to conclude that B’s incapacity did not terminate the conditional fee agreement further. It was also held that re-examination of the Yonge principle and any related authorities was required. Finally, it was deemed potentially ‘unfair’ and ‘unsatisfactory’ for a client’s supervening incapacity to terminate automatically an authority to act on that person’s behalf, which would expose the solicitors to risk of liability to other parties for breach of warranty of authority at a time when they were unaware of their client’s incapacity, and this would deprive them of the authority to protect their client’s position after they became aware of it. The case of Yonge was considered, and it was concluded that this case was currently narrowly focused, and the main issue was whether the conditional fee agreement had been terminated by frustration when B became unable to give instructions, causing the retainer to become incapable of performance. The issue could be resolved on the assumption that Yonge remained good law. In any event, even though the solicitor’s retainer was a personal contract, this did not mean that instructions generally had to be given personally. Also, the parties in this case must have contemplated that B may become incapacitated again at some point, and that instructions would need to be given on her behalf. B’s supervening incapacity did not render the retainer incapable of performance; it had merely given rise to a short delay pending the appointment of a receiver further. The frustration allegation failed, as even if the respondent had been under a duty to provide personal instructions, the situation was covered by the terms of the conditional fee agreement, which clearly entitled the solicitors to end the contract and required B to pay their basic fees.

M’s appeal was therefore dismissed.

Rebecca Chambers (by her litigation friend Deborah Chambers) (claimant) v HM Coroner for Preston & West Lancashire (defendant) & (1) National Offender Management Service for HM Prison (2) Pauline Chambers (interested parties) (2015)

[2015] EWHC 31 (Admin)

DC (Bean LJ, Judge Thornton QC) 14/01/2015

The claimant, Rebecca Chambers, daughter Deborah Chambers (D), sought an order from the court that the defendant coroner’s inquisition into her father’s suicide in prison be quashed and an order that a further inquest be held.

The deceased, F, had hanged himself in his cell in 2004. Several years later in 2007, a jury returned a verdict that there were contributing factors to his death which included bullying and family issues. However, there was insufficient evidence to conclude that the prison was aware of the bullying. D had not been told that the inquest was taking place, despite her request that she be notified as soon as the inquest was due to be heard. However, the coroner had inadvertently believed that F’s brother and mother who had attended the hearing had represented the family as a whole. D was not satisfied with the coroner’s verdict on the grounds of

An irregularity in the proceedings namely the failure to notify her; and

D argued that there was an insufficient enquiry in regard to the extent to which the prison service had discharged their duty of care towards her father. She also argued that where there was a death in custody and there was evidence that medical issues might have contributed, an independent expert should have been appointed to allow for an effective and independent investigation. D had obtained expert evidence from a consultant psychiatrist who concluded that the deceased had not been suitably reviewed.

It was held by the court that ‘the failure to inform the Claimant of the hearing date after she had registered interest with the Coroner was an irregularity, but it did not follow that it was a material irregularity’.

At the inquest, witnesses had been called, some of whom were members of the deceased’s family, and they had been represented by counsel. D’s argument was not a ground for quashing the inquisition. Further, in cases involving suicide, a finding of neglect was only permissible if it could be shown that there had been a gross failure to provide basic medical attention and a direct causal connection between the neglect and death such as in the case of R (on the application of Middleton) v HM Coroner for Western Somerset [2004UKHL10,2004] (2AC182). It was also held that there was no prospect of a finding of neglect in this case, and in respect of independent psychiatric evidence being required, each case had to be determined on its own facts.

Further, ‘to suggest otherwise would be to fetter the discretion of the Coroner who had a wide discretion in deciding which witnesses to call’. In any event, the expert evidence obtained by D suggested there was a potential need for the deceased to see a psychiatrist ‘at some point’. Further, that would have been the appropriate course of action in some cases, but in relation to this case, the psychiatric expert appointed could not ‘give any support to a formal mental health depressive disorder diagnosis’. It was noted that D had suffered from low mood, but he had been treated under the care of the prison health-care team, and there was nothing to show that a psychiatrist would have been likely to recommend any treatment different from that which he had received. Therefore, it was difficulty to show that there had been an ‘insufficiency of enquiry’, and D’s assertion had not presented ‘new facts or evidence’.

It was held that there had been a sufficient enquiry in regard to all the pertinent issues, especially in regard to the management of D’s suicide risk. D’s case had undergone three reviews and all such reviews had concluded that the care provided to D prior to his death was of a reasonable standard and equal to any care that he would have been provided in the community had he not been in prison.

D’s application was refused.