The duty of care in negligence has remained relatively stable compared with other areas of English law.
Its foundations lie in Lord Atkin’s neighbour principle in Donoghue v Stevenson and the approach outlined by Lord Bridge in Caparo Industries plc v Dickman. Law students will recognise the final limb of the Caparo approach, which asks whether it is fair, just and reasonable to impose a duty.
In cases involving the police, courts have often been reluctant to impose liability on public policy grounds. Concerns include defensive policing and the fear of opening the floodgates to countless claims. In Robinson v Chief Constable of West Yorkshire Police, however, the Supreme Court signalled a shift away from this restrictive position.
The factsThe claimant in Robinson was an elderly woman who was knocked to the ground during an attempted arrest of a drug dealer.
She suffered personal injuries and brought a negligence claim against the police. The Recorder accepted that the officers had acted negligently, but felt bound by Hill v Chief Constable of West Yorkshire, which had been interpreted as preventing negligence claims arising from the apprehension of suspects. The Court of Appeal agreed and found no duty of care.
The Supreme Court judgmentAll five justices allowed the appeal.
Lord Reed undertook a detailed analysis of the duty of care principle and clarified that the Caparo approach was never intended to be a universal test applied mechanically in every case. Instead, courts should develop the law incrementally by analogy with established authorities.
Established duty situations should be resolved by reference to precedent, while novel situations should be assessed by comparing them with similar cases and considering the underlying principles.
Lord Reed also emphasised that courts must weigh reasons for and against imposing liability to determine whether a duty would be fair and just. Policy considerations remain relevant, but they do not override established principles. Lord Mance and Lord Hughes agreed with this approach.
Lord Reed then turned to the liability of the police.
He stressed that public authorities are not entitled to special treatment and are generally subject to the same principles as private individuals. He reiterated Lord Keith’s statement in Hill that the police are liable in negligence like anyone else. The idea that they enjoy immunity is incorrect and contradicted by cases such as Rigby v Chief Constable of Northamptonshire and Knightley v Johns, both of which involved liability arising from operational decisions.
The police do not owe a duty to the public at large.
They owe duties only to sufficiently proximate individuals. Lord Reed drew a clear distinction between omissions, where no duty is usually owed, and positive acts, where a duty may arise. Many earlier cases involved omissions and were therefore not relevant. Lord Mance noted that earlier judgments had failed to distinguish clearly between acts and omissions, which had contributed to confusion.
The police have always owed a duty where harm is directly caused by their positive actions. Where harm is caused by a third party, courts have been reluctant to impose liability, as seen in Hill. However, Hill concerned an omission, not a positive act.
On the facts of Robinson, Lord Reed found that the harm was reasonably foreseeable.
Attempting an arrest on a busy street created a foreseeable risk that members of the public could be injured. The suspect’s attempt to escape did not break the chain of causation. Lord Hughes agreed that the police owed a duty in such circumstances, although he remained cautious about abandoning the policy concerns identified in Hill.
He accepted that there is little evidence supporting fears of defensive policing, but believed such consequences were likely. He also noted that policy considerations often form the ultimate reason for denying a duty in cases involving crime prevention.
The Court agreed that the decision to arrest was a positive act. This was the decisive factor in finding a duty of care. Although Lords Mance and Hughes expressed doubts about the Recorder’s finding of negligence, the Court chose not to interfere with the first instance judgment.
Concluding remarksRobinson is a landmark case.
It confirms that the police owe a duty of care to individuals harmed by their positive actions, even when a third party causes the immediate harm. The idea of blanket immunity is unfounded. The long-term implications of the judgment remain uncertain. It is unclear whether Robinson will lead to defensive policing or strain police resources, as feared in Hill.
Together with Commissioner of the Police for the Metropolis v DSD, Robinson may open the door to more claims against the police.
Following DSD, victims of serious crime may bring claims under the Human Rights Act for serious investigative failings.
The law in this area is now in a state of uncertainty, and further judicial clarification is likely.
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