Who is Protected by the Badge? A Critical Look at Jane Doe and Michael

By: Harleen Muker

1) Introduction

The relationship between the state and its citizens is complex and needs to be continuously examined in contemporary governance. A critical question at the heart of this relationship is: When does a public authority become liable under negligence law for its omissions? This question is important now, as the lack of action by public authorities can have profound consequences for individuals and society.

Within the realm of public authority negligence liability for omissions, there is a narrower focus on police services. In the fiscal year 2021–2022, the number of calls received by police services in Canada rose by 2.7% compared to the previous year.¹ Simultaneously, the expenses for operating police services increased by 12% to $18.5 billion.² The rising reliance on police services and the increasing burden on the public purse raises the following question: When a specific individual or group of individuals are at risk from harm that is foreseeable to a police service, does the police service have an affirmative duty to warn or take reasonable care in responding to said harm?

Recently, this question has sparked considerable debate across the Commonwealth, revealing divergent approaches. This paper contends that Canadian courts, in comparison to their counterparts in the United Kingdom (“UK”), have adopted an approach to police service omissions that is more aligned with the foundational “neighbour principle” of negligence law.

2) Structure

Section three will present the leading Canadian and UK jurisprudence on establishing an affirmative duty owed by a police service. Section four will present and comment on the schools of thought that underscore the decisions of the two jurisdictions. Section five will then analyze the UK approach through the lens of the neighbour principle. Section six will discuss the path ahead for the UK.

3) Jurisprudence on the Affirmative Duties of Police Services

A. Canadian Jurisprudence

One of the earliest cases alleging negligence against a police service for an omission is the 1998 Ontario Court of Justice (General Division) case of Jane Doe v Metropolitan Toronto (Municipality) Commissioners of Police.³ Jane Doe centres on the traumatic events endured by Jane Doe, who was the victim of a sexual assault at knifepoint. Following the sexual assault, Doe brought an action, contending that the police service conducted a negligent investigation and failed to warn women known to be potential victims of the perpetrator.⁴ The question for MacFarland J was: “Do the pleadings support a private law duty of care by the defendants in this case?”⁵

In the earlier 1990 Ontario Court of Justice (Divisional Court) decision of this case,⁶ Moldaver J discussed the relationship between the public duties of police officers and private law duties of care, elucidating that:

For the most part, the police are free to go about their task of detecting and apprehending criminals without fear of being sued by individual members of society who have been victimized. The reason for this is simple. While the police owe certain duties to the public at large, they cannot be expected to owe a private law duty of care to every member of society who might be at risk.⁷

In order to impose a private law duty of care alongside the public duties of police services, “foreseeability of risk must co-exist with a special relationship of proximity.”⁸ Moldaver J accepted the following pleadings by the plaintiff in establishing a prima facie duty of care:

The plaintiff further alleges that by the time she was raped, the defendants knew or ought to have known that she had become part of a narrow and distinct group of potential victims, sufficient to support a special relationship of proximity. According to the allegations, the defendants knew:

(1) that the rapist confined his attacks to the Church-Wellesley area of Toronto;
(2) that the victims all resided in second or third floor apartments;
(3) that entry in each case was gained through a balcony door; and
(4) that the victims were all white, single and female.

[…] The harm was foreseeable and a special relationship of proximity existed.⁹

However, Moldaver J noted that “in some circumstances where foreseeable harm and a special relationship of proximity exist, the police might reasonably conclude that a warning ought not to be given.”¹⁰ For instance, if a warning could cause general and unnecessary panic on the part of the public which could lead to more significant harm, a warning may not be mandatory.¹¹ This example can be characterized as a government “policy” decision based on political, social, and economic considerations, which the judiciary refrains from scrutinizing. Leading up to Jane Doe, public authority defendants frequently invoked a policy rationale to negate a prima facie duty of care.

Based on Moldaver J’s assessment of reasonable foreseeability and proximity, MacFarland J ruled that “[o]n the evidence I find the plaintiff has established a private law duty of care.”¹² Notably, MacFarland J rejected the defendant’s argument that the decision not to warn potential victims was a policy decision aimed at avoiding panic because warnings were issued in similar cases.¹³

The duty of care assessment applied in Jane Doe was adopted in subsequent Canadian negligence cases involving positive acts¹⁴ and omissions¹⁵ by police services. Consequently, Canadian police services may owe an affirmative duty when there is an identifiable class of potential victims at risk from harm that is reasonably foreseeable to a police service.

B. United Kingdom Jurisprudence

The 2015 United Kingdom Supreme Court case of Michael v The Chief Constable of South Wales Police¹⁶ is the leading English case on police service omissions. Ms. Michael made a distress call to 999, reporting an immediate danger of an aggressive ex-boyfriend who would be back at any minute to kill her.¹⁷ The call was routed to Gwent Police and the 999 operator advised Ms. Michael that she would correctly transfer the call to South Wales Police.¹⁸ However, the case was transferred to South Wales Police with no mention of the threat of death, and consequently, it was downgraded to a longer response time.¹⁹ Ms. Michael’s second call to the police ended abruptly, leading to the police discovering her brutal murder.²⁰ The question for Lord Toulson was: “If the police are aware or ought reasonably to be aware of a threat to the life or physical safety of an identifiable person, or member of an identifiable small group, do the police owe to that person a duty under the law of negligence to take reasonable care for their safety?”²¹

Lord Toulson, writing for the majority, explained that “English law does not as a general rule impose liability on a defendant (D) for injury or damage to the person or property of a claimant (C) caused by the conduct of a third party (T)”.²² The reason being that the English common law does not generally impose liability for pure omissions, absent an exception (“omission principle”).²³ One of the exceptions is “where D assumes a positive responsibility to safeguard C”.²⁴ Lord Toulson determined that the police service did not assume responsibility to Ms. Michael through the interaction between the 999 operator and Ms. Michael because the operator made no assurances regarding response time.²⁵ The facts of Michael were contrasted with the Court of Appeal case of Kent v Griffiths.²⁶ Lord Toulson stated that in Kent, express assurances were given that an ambulance would be arriving shortly, and therefore a duty of care could be grounded in an assumption of responsibility.²⁷

In support of his judgement that the police service owed no duty of care, Lord Toulson also questioned the applicability of “proximity” in the context of policing. Lord Toulson explained that “the duty of the police for the preservation of the peace is owed to members of the public at large, and does not involve the kind of close or special relationship (“proximity” or “neighbourhood”) necessary for the imposition of a private law duty of care.”²⁸ Lord Toulson supported this statement by noting that using proximity to assess whether a police service owes an affirmative duty, rather than an express assumption of responsibility, leads to arbitrary results by limiting recourse to particular potential victims of crime.²⁹

The approach of the UK courts to negligent omissions by police services can be organized as an inquiry into whether there is an express assumption of responsibility under the traditional omission principle.

The factual similarities between Michael and Jane Doe are notable, namely, (a) a specific individual is at risk from a specific harm; (b) the police service is aware or ought to be aware of information verifying the credibility of the risk; (c) the police service is in a position to restrain the risk from materializing; and (d) the harm inflicted was reasonably foreseeable to the police service. In addition to factors (a)-(c), which created proximity in Jane Doe, Michael went a step furtherbecause the direct communication between the parties arguably led to specific reliance on the police service once the task of responding to the distress call had begun. Despite the similarities and equal weight of the moral claim in Jane Doe and Michael, the outcomesdiverge. The divergence can partly be attributed to the differing schools of thought that underscore the decisions.

4) The Traditional Schools of Thought of Tort Law

Two schools of thought provide conceptual frameworks for tort law.³⁰ The first is the dominant loss-based model, with the fundamental principle that a “defendant should be liable where he is at fault for causing the claimant loss unless there is a good reason why not.”³¹ The 1978 United Kingdom House of Lords decision of Anns v Merton London Borough Council,³² provides one of the earliest accounts of the loss-model being accepted to assess negligence liability.³³ In the 1984 Supreme Court of Canada case of Nielsen v Kamloops (City),³⁴ Wilson J, writing for the majority, adopted the loss-based model for negligence liability as expressed in Anns. Two questions must be asked under the loss-based model when assessing if a duty is owed to a plaintiff:

1) [I]s there a sufficiently close relationship […of “proximity”] between the parties (the local authority and the person who has suffered the damage) so that, in the reasonable contemplation of the authority, carelessness on its part might cause damage to that person?
If so,

2) [A]re there any considerations which ought to negative or limit (a) the scope of the duty and (b) the class of persons to whom it is owed or (c) the damages to which a breach of it may give rise?³⁵

Alternatively, the UK-subscribed rights-based model emphasizes that “[t]he law of torts is concerned with the secondary obligations generated by the infringement of primary rights.”³⁶ Under this model, “[t]he infringement of rights, not the infliction of loss, is the gist of the law of torts.”³⁷ In Allen v Flood,³⁸ Cave J identified rights of bodily safety and freedom, rights of property, and rights of reputation as three rights that individuals hold against the rest of the world.³⁹ Professor Robert Stevens explains that there are also rights that can be created from an undertaking (“assumption of responsibility”).⁴⁰

In summary, under the loss-based model, omissions and positive acts causing harm are equally subject to a duty of care with respect to the factors of proximity, reasonable foreseeability, and whether imposing a duty of care would be just and fair.⁴¹ Under the rights-based model and in the context of police service omissions, pleading an assumption of responsibility is the primary argument to support a duty of care.⁴²

In Canadian negligence law, the loss-based model has been the dominant conception. This approach is evidenced by Kamloops and Jane Doe as both decisions support the possibility of a private law duty to be imposed upon public authorities regardless of whether statutory duties provide a private right per se.⁴³ However, in recent years, Canadian courts have begun to incorporate the rights-based framework. In 1688782 Ontario Inc v Maple Leaf Foods Inc,⁴⁴ Brown and Martin JJ held that in a negligence action, the first step is to identify what rights are at stake.⁴⁵ Therefore, this area of negligence law is not entirely clear about whether the remedy for a tort claim is to provide redress for a wrongful loss or interference with a right. Nonetheless, since a Canadian court may employ either model, the impact of a rights-based model on Jane Doe will be examined, and the adequacy of the application of the rights-based model in Michael will be critiqued.

A. Jane Doe

The question under the rights-based model would be: Can it be argued that in Jane Doe,the police service assumed a responsibility to Doe?

As Professor Donal Nolan explains, it is not always clear whether an assumption of responsibility exists.⁴⁶ Largely, it comes down to the breadth of what one considers to be an assumption of responsibility. Nolan suggests that the most common jurisprudential method of characterizing an assumption of responsibility is when “A has taken on a task or job for B”.⁴⁷ An example of this is when a doctor outside of a hospital comes under an assumption of responsibility when they intervene to render aid to someone despite being under no legal obligation to help prior to intervening.⁴⁸

With these considerations in mind, a cogent argument against a duty of care in Jane Doe is that the police service did not begin a task for Doe but rather the public. Although this is difficult to reconcile with Nolan’s definition, it is not impossible. It can be argued that based on the public duty to act, once a specific harm to an identifiable victim is recognized, the actions of a police service are engaged for the benefit of the specific individual insofar as it does not conflict with the duty to the public. This line of reasoning is likely to be met with strong opposition, and if that is the case, the consequences of not recognizing this practical reality must be squarely addressed. It would be a dangerous precedent to provide blanket immunity for negligent omissions on the basis that the acts of a police service are undertaken for the public. Doing so would equate police response to crime as a discretionary power absent an assumption of responsibility. This would allow police services to operate negligently and have a “hall-pass” to do so, which is unacceptable and irreconcilable with the police’s public duty to act. Furthermore, a strict interpretation of an assumption of responsibility runs the risk of unfairly placing the responsibility of protection on victims, despite public funding and the limited ability of individuals to protect themselves—as police services have a monopoly on the use of lethal force. This creates what can be characterized as an unjust state-enforced protective regime.

Therefore, in the case of Jane Doe, the more restrictive rights-based model creates additional difficulty in making out Doe’s claim but is not entirely irreconcilable with the loss-based model. The degree to which the results under the two models can be reconciled is a function of the extent to which the definition of an assumption of responsibility is flexible and informed by practical realities.

B. Michael

Nolan states that an assumption of responsibility can have three meanings, “(1) the taking on of a task, including by beginning performance of it; (2) the acceptance of a legal duty (which is to say, an acceptance of responsibility in the ‘legal responsibility’ sense); or (3) the giving of a promise or assurance (the first sense of ‘undertaking’).”⁴⁹

Under the “beginning performance” meaning, “[w]hat matters is that A has taken on the task, not how A has done so”.⁵⁰ From this, it can be understood that an assumption of responsibility does not require communication between parties, reliance, or that assurances be made.⁵¹ In Jane Doe, the police service had no communication with the plaintiff and thus, there is added difficulty to refute the “duty to the public” argument. However, in Michael,by beginning the response to the emergency call, the police were beginning a task at the request of Ms. Michael. Despite this, the majority in Michael decided to limit the breadth of an assumption of responsibility to the third meaning, which requires an assurance to be made.⁵² Lord Toulson ruled that “[t]he only assurance which the call handler gave to Ms. Michael was that she would pass on the call to the South Wales Police. She gave no promise how quickly they would respond.”⁵³

The reasoning of the majority in Michael is problematic because the concept of an assumption of responsibility created through conduct has been overlooked. As Stevens asserts, “[d]octors are entitled to walk past the sick, but if a sign is put up saying ‘Public Hospital’ a duty has been assumed that care will be taken of those who turn up expecting treatment.”⁵⁴ Why should police services be protected from voluntary assumptions of responsibility when similar professionals can be held to private law duties based on their conduct without express words? Therefore, even when accepting a more restrictive rights-based model, the majority’s reasoning in Michael is a questionable constraint on the breadth of the assumption of responsibility principle.

While the varying treatment in Canada and the UK is partly attributable to the underlying school of thought, the possibility of construing an affirmative duty in Jane Doe and Michael is possible under both conceptual frameworks. Therefore, this paper does not seek to comment on whether the loss-based or rights-based model is the correct choice for apportioning liability between police services and individuals. This follows from the premise that while the rights-based approach is currently more restrictive, it does not necessarily have to be. Suppose the concept of an assumption of responsibility is informed by the practical role defendants play in society and the moral obligations that flow from a defendant’s relationship with an individual member of the public. For example, consider a solicitor providing services gratuitously. There is an obligation that reasonable care will be taken despite the services being provided gratuitously.⁵⁵ This is explained by the distinct role solicitors play in society and the moral obligations that flow from a solicitor-client relationship. Therefore, extending a similar understanding to the context of policing would allow the rights-based assumption of responsibility concept to be more reconcilable with the concept of proximity under the loss-based model.

Nonetheless, as the law stands today, the rights-based model employed by the UK courts is misaligned with the foundational neighbour principle of negligence law. The misalignment is attributable to the assertion of the omission principle, which presupposes a higher threshold for recovery against negligent omissions by requiring express assurances to be made and limiting the applicability of proximity. The UK approach can be criticized because (1) the omission principle is a restrictive interpretation of the rights-based model; (2) the omission principle is largely based on policy considerations; (3) in the context of policing, the omission principle leads to arbitrary decisions; and (4) the omission principle is irreconcilable with jurisprudence on the duties of police services.

5) Alignment with the Neighbour Principle

A. The Neighbour Principle

The neighbour principle is the foundation of the law of negligence. Lord Atkins in Donoghue v Stevenson,⁵⁶ stated, “[t]he rule that you are to love your neighbour becomes in law, you must not injure your neighbour”.⁵⁷ Lord Atkin explained that the scope of who is a neighbour is restricted to “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”⁵⁸ Noticeably, Lord Atkin did not distinguish special treatment for omissions. Lord Atkin based this decision on the principle that “liability for negligence […] is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay.”⁵⁹

B. The History of the Neighbour Principle in the UK and Canada

Ultimately, the UK courts did not adopt the neighbour principle until the Anns decision. In Anns,it was held that a public authority owed an affirmative duty to the plaintiff when it failed to conduct a reasonable inspection of a building.⁶⁰ Professor Ernest Weinrib explains that the series of cases following Anns repudiated its reasoning and weakened its applicability in the context of an omission.⁶¹ Concurrently, the UK courts firmly established the omission principle and its applicability to public authorities.⁶² Besides a restructuring of the core elements in Cooper, Canadian courts have since widely endorsed the reasoning of the Anns decision irrespective of the case concerning a positive act or omission.

C. The English Omission Principle and the Right to the Conferral of Benefits

Nichola Hodge explains that since Stovin v Wise,⁶³ the English common law has firmly accepted that absent an assumption of responsibility, an omission will not lead to a duty of care.⁶⁴ Professor Stelios Tofaris and Professor Sandy Steel provide that a critical argument cited by proponents of the omission principle is the effect of affirmative duties on individual autonomy.⁶⁵

Ensuring that individual autonomy is not invaded is a valid consideration in cases involving omissions. However, the UK approach takes the rights-based idea that we do not have a right against the world for benefits to be conferred upon us to an extreme by employing the omission principle. Tofaris and Steel highlight that a general duty to protect from third-party risks may be invasive, but a positive duty limited by proximity is not obviously as invasive.⁶⁶ This is logical when we consider that “the fact we do not and ought not to have such a right good against the whole world need not imply that we ought not the have such a right good against some limited class of well-positioned potential duty-bearers in limited circumstances”.⁶⁷ Indeed, Lord Atkin recognized that “acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief”.⁶⁸ Under the loss-based model, this is where the concept of “neighbourhood” or proximity is engaged, to determine when we can have such rights to benefits. Therefore, while the omission principle asserts that the concept of proximity is inapplicable to omissions, the logic behind this is not clear.

As suggested by Professor Andrew Robertson and Julia Wang, “the assumption of responsibility is not a distinctive category of obligation, but simply a particular manifestation of the neighbour principle.”⁶⁹ It follows that an assumption of responsibility analysis should not entirely ignore the neighbourhood concept in cases concerning omissions. Whether a loss-based or rights-based model is employed, analyzing the neighbourhood between the parties should be the court’s focus. Consequently, under a rights-based model, this requires the courts to move away from a restrictive omission principle that ignores the concept of neighbourhood towards an understanding that a right to a benefit can arise from an assumption of responsibility informed by relational factors between parties.

D. The Policy-Based Judicial Restriction of Tort Law

Professor Paula Giliker has stated that the current restrictive view of the role of tort law reveals “a nervousness by the courts to engage in decisions of distributive justice, preferring to leave such matters to politicians, and to stick to an orthodox ‘principled’ approach supported by the academic scholarship of Nolan, Stapleton and Stevens”.⁷⁰ Yet, Lord Hoffman expressed the rationale for the omission principle to be that “it is one thing for the law to say that a person who undertakes some activity shall take reasonable care not to cause damage to others. It is another thing for the law to require that a person who is doing nothing in particular shall take steps to prevent another from suffering harm from the acts of third parties”.⁷¹ This rationale was predominantly based upon political, economic, and social considerations.⁷² Therefore, “however, one justifies the current principled approach, it represents a policy choice which narrowly limits tort law intervention for failure to prevent harm.”⁷³

Since Stovin, the arguments invoked by proponents of the omission principle have primarily remained the same, including individual autonomy, the supposed less relative culpability of omissions from positive actions, and the non-existence of a right to assistance from proximate parties.⁷⁴ Undoubtedly, these arguments involve moral, philosophical, societal, economic, and political considerations. Therefore, if the differing treatment for omissions is based on judicial-policy, was the introduction of the omission principle in Stovin justified? Prior to Stovin, omissions and positive acts were adjudicated the same, as suggested by the neighbour principle. In effect, the English judiciary has formed the omission principle based on policy considerations that should have been left to the legislature. If there was a reason to treat omissions and positive acts differently, and there might be, the decision to vary treatment should not have been achieved through the judicial system.

Furthermore, if the omission principle is based on policy, it is arguable that there is a plethora of contemporary social policy considerations that would support affirmative duties of care. At the very least, in the context of policing, there must exist compelling policy considerations that ought to diminish the credibility of the traditional line of reasoning, including the following remarks in Lady Hale’s dissent in Michael:

It is difficult indeed to see how recognising the possibility of such claims could make the task of policing any more difficult than it already is. It might conceivably, however, lead to some much-needed improvements in their response to threats of serious domestic abuse. This continues to be a source of concern to “Her Majesty’s Inspectorate of Constabulary: see Everyone’s Business: Improving the Police Response to Domestic Abuse (2014).”⁷⁵

Upholding an omission principle based on policy but refusing to engage in discussions on distributive justice artificially narrows the scope of recovery against negligent omissions. As stated, omissions may be less worthy of recovery after balancing considerations. Regardless, the omission principle has not been created in a principled or incremental manner and demonstrates an active policy-informed judicial decision to limit the application of the neighbour principle to omissions. Therefore, the grounds upon which the omission principle subjects omissions to a greater bar against recovery, contrary to the neighbour principle, is unstable.

E. The Arbitrary Application of the Omission Principle in the Policing Context

As seen in Michael, in the context of police service omissions in the UK, an express assumption of responsibility is needed to find a duty of care under the omission principle. This is problematic because it leads to arbitrary results that cause mostly similar “neighbours” to be unjustly and unfairly treated differently. This works against what Lord Dyson states as “[t]he general rule that where there is a wrong there should be a remedy is a cornerstone of any system of justice. To deny a remedy to the victim of a wrong should always be regarded as exceptional. As has been frequently stated, any justification must be necessary and requires strict and cogent justification”.⁷⁶ Comparing the cases of Michael and Kent, is the lack of express words of assurance by the 999 operator reasonable grounds to restrict recovery for one neighbour but not the other? Practically speaking, both cases generally involved the same type of reliance being placed upon the emergency service provider, so it cannot be just or fair to limit recovery strictly due to the words used by a 999 operator without regard to the moral claim of the plaintiff.

Lord Kerr advanced a vigorous dissent in Michael, aligned with the Canadian approach. Citing Caparo Industries Plc v Dickman,⁷⁷ Lord Kerr stated that “provided it is fair, just and reasonable that a duty should arise, police will be liable where they have failed to prevent foreseeable injury to an individual which they could have prevented, and there is a sufficient proximity of relationship between them and the injured person.”⁷⁸ On Lord Toulson’s argument of the arbitrariness of proximity, Lord Kerr’s response was that any formulation of liability is a balancing act, and in the context of policing it may involve drawing lines in balancing effective administration of policing and protecting individuals from harm.⁷⁹ From a pragmatic perspective, Lord Kerr’s line of reasoning is coherent insofar as the law ought not to restrict recovery for glaring omissions on the grounds that the operation of the law may be arbitrary.⁸⁰ The use of proximity in an assessment provides a necessary workable basis upon which negligence can be remedied without imposing unjust burden on police services. Meanwhile, the omission principle emphasizes the need for an express assumption of responsibility that, in practice, is unjustly arbitrary.

The application of the assumption of responsibility principle in Michael also reveals that defining an “assumption of responsibility” tends to be an imprecise task. Being a standard of the “principled” approach, such uncertainty ought to render its determinative value equal to, if not lower, than that of proximity. Proximity is “a balancing of the plaintiff’s moral claim to compensation for avoidable harm and the defendant’s moral claim to be protected from an undue burden of legal responsibility”.⁸¹ The notion that case-specific factors can variably give rise to proximity does not detract from its core understanding that imposing a duty ought to be a balancing act aimed at achieving just and fair decisions. Under the UK approach, a less consistent application of the assumption of responsibility principle raises questions on its suitability as a standalone concept for whether a duty of care should be owed in cases of omissions. Consequently, by employing the omission principle and placing the sole focus of an inquiry on an undefined concept, the situations in which a right to a positive act may be found are arbitrarily restricted, necessitating the use of the complementary concept of proximity.

The judicial push for a “principled” approach in the UK is ironic, given that the definitions of concepts within the omission principle are subject to variation on a case-by-case basis. Arbitrarily varying definitions to modify the bar for recovery overlooks the broader context of the relationships, commitments, responsibilities, and obligations involved in a negligence claim, as expressed by the neighbour principle.

F. The Irreconcilability of the Omission Principle with Jurisprudence on Police Duties

Finally, it is difficult to see how the omission principle in the policing context can be reconciled with the earlier English common law decision of Glasbrook Brothers Ltd v Glamorgan County Council.⁸² In Glasbrook Brothers Ltd,the “House of Lords held that the police have a duty to take all steps which appear necessary for keeping the peace, for preventing crime and for protecting from criminal injury”.⁸³ Furthermore, “The House also approved a statement by Pickford LJ in Glamorgan Coal Co Ltd v Glamorganshire Standing Joint Committee [1916] 2 KB 206, 229, that a party threatened with violence from another is entitled to protection, whatever the rights and wrong of their dispute.”⁸⁴ These duties, recognized by the common law, show the inadequacy of the omission principle insofar as police services are concerned. This is because the omission principle does not account for the common law obligation of police services to act when called upon. Thus, the omission principle is misaligned with the neighbour principle because it provides redress only to neighbours to whom express assurances have been made while failing to consider that police services may have positive obligations irrespective of express assurances by virtue of their special relationship with individuals.

6) Conclusion

In conclusion, the Canadian courts have implemented an approach to police service omissions that is closely aligned with the core neighbour principle of negligence law by treating omissions and positive acts alike. On the contrary, the UK approach has emphasized an omission principle that conflicts with the neighbour principle. In short, the UK approach has glorified an omission principle that (1) is a restrictive view of the rights-based model; (2) is based on a questionable policy rationale; (3) leads to arbitrary adjudication of negligent police omissions; and (4) fails to be reconcilable with the obligatory nature of policing. Despite the observable frailties of the UK approach, as the law stands today, UK plaintiffs seeking remedy for negligent police omissions will be met with stringent and seemingly unjust requirements. Given the rising reliance on police services, UK courts ought to return to the core understanding of the neighbour principle, which focuses on the neighbourhood between parties regardless of whether the conduct in question is an omission or a positive act. Whether the return is achieved by adopting a loss-based model or an assumption of responsibility analysis informed by relational factors is left to be seen.

BIBLIOGRAPHY

Jurisprudence

1688782 Ontario Inc v Maple Leaf Foods Inc 2020 SCC 35.

Anns v Merton London Borough Council AC 728 [Anns].

Allen v Flood [1898] 1 AC 1.

Cooper v Hobart, 2001 SCC 79 at paras 31-32, 34 [Cooper].

Donoghue v Stevenson [1932] AC 562 [Donoghue].

Glasbrook Brothers Ltd v Glamorgan County Council [1925] AC 270 (HL) [Glasbrook Brothers Ltd].

Hill v Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41.

Jane Doe v Metropolitan Toronto (Municipality) Commissioners of Police 160 DLR (4th) 697, 39 OR (3d) 487 [Jane Doe cited to DLR].

Jane Doe v Metropolitan Toronto (Municipality) Commissioners of Police 72 DLR (4th) 580, OR (2d) 225 [cited to DLR].

Jones v Kaney, [2011] UKSC 13 at para 113.

Kamloops (City of) v Nielsen 2 SCR 2, 5 WWR 1 [Kamloops cited to SCR].

Kent v Griffiths [2001] QB 36 [Kent].

Michael v The Chief Constable of South Wales Police UKSC 2 [Michael].

Odhavji Estate v Woodhouse, 2003 SCC 69.

Stovin v Wise [1996] AC 923 (HL) [Stovin].

Caparo Industries Plc v Dickman [1990] 2 AC 605 (HL).

Secondary Sources: Articles

Andrew Robertson & Julia Wang, “The Assumption of Responsibility” in Kit Barker, Ross Grantham & Warren Swain, eds, The Law of Misstatements: 50 Years on from Hedley Byrne v Heller (Oxford & Portland: Hart Publishing, 2015) 49 at 82.

Donal Nolan, “Assumption of Responsibility: Four Questions” (2019) 72:1 Current Legal Problems 123 at 127.

Nichola Hodge, “Police, Negligence and the Elusive Special Ingredient: A Critical Analysis of Michael v Chief Constable of South Wales Police and the Liability of Police for the Actions of Third Parties” (2018) 24 Canterbury L Rev 107 at 109.

Paula Giliker, “Is there a Duty to Prevent Harm in Tort? A Common Law Perspective” (2021) 12 Journal of European Tort Law 116 at 142.

Stelios Tofaris & Sandy Steel, “Negligence Liability for Omissions and the Police” (2016) 75:1 Cambridge LJ 128 at 130.

Secondary Sources: Treatises

Ernest J Weinrib, “Tort Law: Cases and Materials”, 5^th ed (Toronto: Emond Montgomery Publications Limited, 2019) at 569–570.

Robert Stevens, “Torts and Rights” (Oxford: Oxford University Press, 2007), at 1.

Secondary Sources: Reports

Statistics Canada, “Decrease in the rate of police strength in Canada in 2022”, Catalogue No. 11-001-X (Ottawa: Statistics Canada, 27 March 2023).

Endnotes