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Unlike a number of other areas in English law, there have been very few recent changes to the duty of care principle in the tort of negligence. The undeniable backbone to this area of law is of course the ‘neighbour principle’ as enunciated by Lord Atkin in Donoghue v Stevenson, coupled with Lord Bridge’s ‘formula’ for determining new duty situations that was laid out in Caparo Industries plc v Dickman.
As most law students will know, the final limb of this ‘formula’, as enunciated Lord Bridge, involves the court assessing whether it would be fair, just and reasonable to impose a duty in the situation before it. In instances involving the police, the courts are generally reluctant to impose a duty on public policy grounds. It is often argued that the conferring of such a duty would lead to the adoption of defensive practices and open the so-called ‘floodgates’ to innumerate claims against the police. In one of its most recent judgments though, the Supreme Court has evidenced a retreat from such a position.
Unlike a number of other areas in English law, there have been very few recent changes to the duty of care principle in the tort of negligence.
The Appellant in Robinson was an elderly lady who was knocked to the ground during an attempted arrest of a drug dealer by police officers. As a result of the events, the Appellant suffered personal injuries and subsequently made a claim against the Respondent.
The Recorder at first instance accepted that the police officers had been negligent in carrying out their duties. However, the precedent set by Hill v Chief Constable of West Yorkshire precluded any successful claims in negligence against the police for damage caused in the course of apprehending a suspect. The Court of Appeal found there to be no duty of care owed and no breach.
The Supreme Court Judgment
All five justices allowed the appeal. In doing so, Lord Reed embarked on a thorough analysis of the duty of care principle. Specifically, he sought to dispel the belief that the existence of a duty should always depend on applying the formulaic approach posited by Lord Bridge in Caparo. Indeed, Lord Reed clarified that Lord Bridge had not intended for his questions to become a test that should be used in each case before a court. On the contrary, the correct approach is to identify and compare novel situations with any established precedents and thereby allow for the law to develop ‘incrementally and by analogy with established authorities’ [para 21].
In addition, a court must balance reasons for or against the imposition of liability in order to determine whether finding a duty to exist would be fair and just [para 29]. This balancing act appears to be an attempt by Lord Reed to retain policy reasons as important in deciding whether a duty is owed. In summary, it appears that Lord Reed meant that established duty situations should be decided in accordance with previous case law and that novel situations be decided in accordance with their facts and having compared similar cases throughout the area of law. Lord Mance agreed with Lord Reed in this respect [para 86], as did Lord Hughes [para 100].
Having dismissed the notion of a uniform three-part test arising from Caparo, Lord Reed subsequently set out to examine the liability of the police. He first made clear that public authorities receive no special treatment and are generally treated as private individuals are in this area of law [para 40]. Furthermore, he reiterated Lord Keith’s exposition in Hill that the police are liable in the tort of negligence ‘like anyone else’. The idea that they are to be ‘immune from suit’ as proclaimed by the Recorder at first instance is erroneous and evidenced by previous cases such as Rigby v Chief Constable of Northamptonshire and Knightley v Johns [para 46]. Indeed, Lord Reed stated that Rigby was a clear example of the police owing a duty of care whilst performing their core operational duties [para 48].
Significantly though, the police do not owe a duty to the public at large, only those sufficiently proximate, in accordance with the general principles of negligence. Moreover, Lord Reed sought to distinguish between omissions by the police, where no duty is generally owed, and positive acts, where a duty is to be owed. Many of the examples in this area concern omissions and are therefore irrelevant. Lord Mance however, noted that previous judgments had failed to distinguish between liability for acts and omissions [paras 86-87]. In any event, he found that cases such as Hill had been decided for different reasons.
It is important to recognise that the police have always owed a duty where harm is directly caused through their positive actions. Where a third party causes harm to an individual that is because of police involvement though, the law has veered away from imposing liability on the police. The case of Hill is a prime example. However, Hill concerned an omission on the part of the police, not a positive act.
On the facts, Lord Reed found the result to have been reasonably foreseeable as a result of the actions of the police. By attempting an arrest in public and on a busy street it was foreseeable that members of the public may be caught up in the ensuing struggle, which itself was probable to occur as the suspect was highly likely to try and resist arrest. Additionally, Lord Reed thought there to be sufficient causation and that the suspect’s attempted escape did not break the chain.
Lord Hughes in his judgment was in agreement with Lord Reed that the police owe a duty of care in certain situations. But he also cited the policy reasons expounded by Lord Keith in Hill as to why the police should not always owe one [para 103]. These he considered at length. Indeed, Lord Hughes acknowledged the criticism that there is no evidence to support the notion that imposing a duty on the police in these situations would lead to defensive practices [para 112], but that such a result would be inevitable in his view. Further, because of the authoritative nature of these policy considerations, Lord Hughes was opposed to their sudden abandonment [para 113]. Especially when these factors tend to be the ‘ultimate reason’ why there is no duty owed by police officers to members of the public during the investigation and prevention of a crime [para 118].
The Court was in agreement that the decision to arrest was an example of a positive act as opposed to an omission. It would appear that this was the decisive factor in the reasoning of the judges, even though they were mindful of the policy implications of their decision.
It is worth mentioning the disproval of Lords Mance and Hughes towards the Recorder’s finding of negligence. That they are sceptical of the existence of any negligent behaviour on the part of the police officers concerned is clearly disquieting. Nonetheless, the Court thought not to ‘interfere’ with the first instance judge’s findings on this occasion.
The Court was in agreement that the decision to arrest was an example of a positive act as opposed to an omission.
This surely landmark case appears to be clear authority for the proposition that the police will owe a duty of care to individuals who suffer harm caused by a third party as a result of a positive action on their behalf. The conventional idea of the police having a blanket immunity from claims is illusory. Yet the precise ramifications that this judgment will have on the service, and negligence in general, remain to be seen. Whether Robinson will lead to defensive practices or poor application of police resources as identified by Lord Keith in Hill is something certainly worth watching out for.
Together with the Court’s recent judgment in Commissioner of the Police for the Metropolis v DSD and another, it seems quite possible that the police may face a flood of claims. Following DSD, victims of serious crime may submit claims against the police for serious failings in their investigational capacity under the Human Rights Act 1998. Ultimately, these judgments leave the law in this area in a deeply uncertain position. As a consequence, this Court’s analysis of the duty principle is unlikely to be the last.