Share it

An assault on Hill? Police liability in negligence positively narrowed

In Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, the Supreme Court made significant inroads into the principle that the police cannot be sued in negligence save in exceptional circumstances as a result of alleged failures in their core operational duties. Now, where a third party such as a pedestrian is injured as a result of a negligent arrest on the street by a police officer, the police are liable in negligence where that injury was a reasonably foreseeable consequence of the police’s actions.

This is the most important police law case for a generation. It goes to the heart of when a duty of care will be imposed on the police for the performance of their operational duties. The news is very bad if you are a Chief Constable. The news is very good if you are a claimant (or defendant) lawyer.

As lawyers we are attracted to certainty. It makes our job of advising clients easier. For many years there have been widely understood ‘bright lines’ limiting the circumstances in which a duty of care would be imposed on the police for the performance of their core functions of preventing and detecting crime. Those previously understood limitations have now gone. The police (and public authorities in a similar position) are to be treated the same as everyone else. The public policy arguments that justified the police’s privileged position no longer apply in the way that was previously thought.

Moreover, the police are now liable for the acts of third parties if those acts are the foreseeable consequence of acts by the police.

Background

In order to comprehend the importance of this decision is necessary to have some understanding of the facts.

The case concerned an injury to a bystander present at the scene of an arrest. One officer saw W drug dealing. The officer made an operational assessment that he could not immediately make an arrest. He called for support. In the meantime W had moved locations and was standing outside a shop in the town centre. Other officers arrived. The officers considered that if they did not arrest W at that point the opportunity would be lost and also that there would a risk of a loss of important evidence. The decision was made that two officers would approach W from one side and two from the other side. The latter two officers were to arrive momentarily after the first two, in order to avoid spooking W. The officers approached W and took hold of him. He resisted arrest and there was a struggle. W’s efforts to avoid arrest took him and the officers some metres away from the initial point of contact. Due to W’s force the group then fell to the ground, colliding with and injuring the Claimant, a completely unconnected pedestrian – in the process.

The decisions

The trial judge had held that the police were negligent in performing the arrest but that a duty of care was not imposed on the police in such circumstances. Accordingly the claim failed. The Claimant appealed the trial judge’s decision on the duty of care. The Defendant cross-appealed the finding of negligence.

In the Court of Appeal (Hallett LJ, Sullivan LJ, Arnold J) the Claimant’s appeal was dismissed. There was no duty of care imposed in these circumstances.  The Court of Appeal indicated in strong terms that if it had been required to consider the cross appeal, it would not have upheld the trial judge’s finding of negligence.

The matter was then appealed to the Supreme Court.

The decision of the Supreme Court

The imposition of duties of care

The Court reviewed the evolution of the law on the imposition of duties of care. It is thus essential reading for any tort lawyer.  It is self-evident that any case which includes express reference to (amongst others) Donoghue v Stevenson, Hedley Byrne v Heller, Anns v Merton, Murphy v Brentwood, Caparo v Dickman, Stovin v Wise is going to be of importance.

The Court stressed that there is no single definitive test that should be used to assess whether a duty of care will arise in any particular case. Rather, what is required is:

“[A]n approach based, in the manner characteristic of the common law, on precedent, and on the development of the law incrementally and by analogy with established authorities” [21].

“Where the existence or non-existence of a duty of care has been established, a consideration of justice and reasonableness forms part of the basis on which the law has arrived at the relevant principles. It is therefore unnecessary and inappropriate to reconsider whether the existence of the duty is fair, just and reasonable (subject to the possibility that this court may be invited to depart from an established line of authority)” [26]

“In the ordinary run of cases, courts consider what has been decided previously and follow the precedents (unless it is necessary to consider whether the precedents should be departed from). In cases where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions. They will also weigh up the reasons for and against imposing liability, in order to decide whether the existence of a duty of care would be just and reasonable.” [29]

“[I]t is neither necessary nor appropriate to treat Caparo Industries v Dickman [1990] 2 AC 605 as requiring the application of its familiar three-stage examination afresh to every action brought. Where the law is clear that a particular relationship, or recurrent factual situation, gives rise to a duty of care, there is no occasion to resort to Caparo, at least unless the court is being invited to depart from previous authority” [100]

To any person acquainted with the common law this all sounds entirely reassuring. Where the courts have already determined whether a duty of care should be imposed in particular circumstances, there is no need for this issue to be reconsidered in subsequent cases. Anyone reading only these passages would be forgiven for assuming that no duty of care would have been imposed on the police in this case, given the long and consistent line of high authority which appeared to have been stated in firm terms that no such duty arises should be imposed on the police public policy grounds.

However, the reassurance inherent in the incremental approach set out above assumes that the existing law is properly understood. In Robinson, the Supreme Court decided that various statements of the law in this area – including from the Supreme Court itself – were not correct, or at least had not been properly understood.

Please see Part Two here.
Please see Part Three here.

This article was originally posted on the UK Police Law Blog, here.