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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Robinson v West Yorkshire Police  EWCA Civ 15 (05 February 2014)
Cite as:  EWCA Civ 15
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ON APPEAL FROM Huddersfield County Court
Mr Recorder Pimm
Strand, London, WC2A 2LL
B e f o r e :
VICE PRESIDENT OF THE CACD
LORD JUSTICE SULLIVAN
MR JUSTICE ARNOLD
|- and -
|Chief Constable of West Yorkshire Police
Mr Ian Skelt instructed by Office of the Force Solicitors for the Respondent
Crown Copyright ©
Lady Justice Hallett, Vice President of the CACD :
Trial Judge's Findings
i) The arrest called for more careful planning and elimination of risk than that demonstrated.
ii) The officers should have waited and selected a safer or better opportunity to carry out the arrest. There was no urgency.
iii) There was a significant and foreseeable risk that Williams would try to escape.
iv) The risk of injury to Mrs Robinson in particular was foreseeable given her proximity to the arrest. Her physical presence was sufficient in itself to amount to proximity in law.
v) DS Willan was under a duty which he acknowledged to consider the risk to her and other members of the public near by.
vi) Ds Willan failed to notice Mrs Robinson as he should have done.
vii) There was no evidence to support the assertion that had all four officers gathered to arrest him, Williams might have recognized them as police officers.
viii) DS Willan could and should have minimized the risk by deploying Roebuck and Green closer to the scene at the time of the strike.
ix) DS Willan lost his hold on Williams; he did not jump on him recklessly. It was Williams' struggling that took the melee to where Mrs Robinson was walking.
x) This was a case of negligence but not outrageous negligence.
xi) However, the "immunity" from suit for police officers engaged in the apprehension of criminals described in the case law applied and, despite the finding of negligence, the claim must be dismissed.
The Appellant has permission to appeal the finding in relation to "immunity". The Respondent wishes to appeal the findings of the existence of a duty and negligence, but supports the ultimate decision.
Ground 1: the Recorder was wrong in law to apply the three- stage ("Caparo") test to the Appellant's case of direct physical harm
"The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question "Who is my neighbour?" receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be 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."
i) the foreseeability of damage,
ii) a relationship of "proximity" and
iii) the court considers it fair, just and reasonable to impose a duty.
"The question of law which is opened up by the case is whether the individual members of a police force, in the course of carrying out their functions of controlling and keeping down the incidence of crime, owe a duty of care to individual members of the public who may suffer injury to person or property through the activities of criminals, such as to result in liability in damages, on the ground of negligence, to anyone who suffers such injury by reason of breach of that duty."
i. There was no general duty of care owed to members of the public to identify and apprehend an unknown killer. The fact that Miss Hill was young and female did not of itself place her at special risk and there were no other additional "vital" characteristics capable of establishing a duty of care of the kind as were present in Dorset Yacht.
ii. In any event, as a matter of public policy, the police were generally immune from actions for negligence in respect of their activities in the investigation and suppression of crime. This became known as the Hill principle.
"There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence. Instances where liability for negligence has been established are Knightley v Johns  1 All ER 851,  1 WLR 349 and Rigby v Chief Constable of Northamptonshire  2 All ER 985,  1 WLR 1242." (p. 59)
"One established category of case, however, is where the loss is directly incurred by the act or omission of the police. The police have been held to owe a duty of care where loss directly results from some act or omission of theirs, such as an instruction given to a colleague, or a failure to provide assistance to a colleague or the use of CS gas in premises without fire fighting equipment (see Costello v Chief Constable of Northumbria  ICR 752 and Rigby v Chief Constable of Northamptonshire  1 WLR 1242). We are not concerned with this category of case.".
"That brings me to the policy factors which, in my view, argue against the recognition of a duty of care owed by the C.P.S. to those it prosecutes. While it is always tempting to yield to an argument based on the protection of civil liberties, I have come to the conclusion that the interests of the whole community are better served by not imposing a duty of care on the C.P.S. In my view, such a duty of care would tend to have an inhibiting effect on the discharge by the C.P.S. of its central function of prosecuting crime. It would in some cases lead to a defensive approach by prosecutors to their multifarious duties.
"Counsel for the cargo owners submitted that in cases of physical damage to property in which the plaintiff has a proprietary or possessory interest the only requirement is proof of reasonable foreseeability. For this proposition he relied on observations of Lord Oliver of Aylmerton in Caparo Industries plc v Dickman  1 All ER 568 at 585,  2 AC 605 at 632–633. Those observations, seen in context, do not support his argument. They merely underline the qualitative difference between cases of direct physical damage and indirect economic loss. The materiality of that distinction is plain. But since the decision in Home Office v Dorset Yacht Co Ltd  2 All ER 294,  AC 1004 it has been settled law that the elements of foreseeability and proximity as well as considerations of fairness, justice and reasonableness are relevant to all cases whatever the nature of the harm sustained by the plaintiff."
"It is, of course, desirable that police officers should treat victims and witnesses properly and with respect: compare the Police (Conduct) Regulations 2004 (SI 2004/645). But to convert that ethical value into general legal duties of care on the police towards victims and witnesses would be going too far. The prime function of the police is the preservation of the Queen's peace. The police must concentrate on preventing the commission of crime; protecting life and property; and apprehending criminals and preserving evidence:"
"32 While not challenging the decision of the House of Lords in Hill's case counsel submitted that it can be distinguished. The only suggested distinction ultimately pursued was that in Hill's case the police negligence was the indirect cause of the murder of the daughter whereas in the present case the police directly caused the harm to Mr Brooks. That hardly does justice to the essential reasoning in Hill's case. In any event, Calveley v Chief Constable of the Merseyside Police  AC 1228 , Elguzouli-Daf v Comr of Police of the Metropolis  QB 335, and Kumar v Comr of Police of the Metropolis 31 January 1995 were cases of alleged positive and direct negligence by the police. The distinction is unmeritorious."
"Clearly the violation of a fundamental right is a very serious thing and, happily, since the Human Rights Act 1998 , it gives rise to a cause of action in domestic law. I see no sound reason, however, for matching this with a common law claim also. That to my mind would neither add to the vindication of the right nor be likely to deter the police from the action or inaction which risks violating it in the first place. Such deterrence must lie rather in the police's own disciplinary sanctions (as, indeed, were applied in Van Colle) and, in a wholly exceptional case like R v Dytham, in criminal liability. Rather I am satisfied that the wider public interest is best served by maintaining the full width of the Hill principle. There is, of course, in these cases (as in D v East Berkshire) always a price to be paid by individuals denied for public policy reasons (as not being "fair, just and reasonable" within the Caparo principle— Caparo Industries plc v Dickman  2 AC 605 ) a civil claim in the interests of the community as a whole."
"32 The modified core principle in Hill may not apply in exceptional circumstances at the margins; to an ordinary case where, for instance, in a road accident the police cause personal injury or physical damage by negligent driving; nor to cases where on particular facts a police officer is taken to have assumed responsibility to an individual claimant. Cases where liability for negligence against the police have been established or the existence of a duty of care has been held to be arguable include Knightley v Johns  1 WLR 349; Rigby v Chief Constable of Northamptonshire  1 WLR 1242; Gibson v Orr  SC 420 as to which see Van Colle at paragraph 79; Swinney v Chief Constable of Northumbria Police  QB 464 as to which see Van Colle at paragraphs 80, 120; and Costello v Chief Constable of Northumbria  ICR 152, as to which see Van Colle at paragraph 120."
Conclusions on the Law
Applicability of the Caparo test to claims for direct physical harm
"162.… the scope and content of any such duty of care are themselves matters for determination. In the modern law of negligence, the starting point for determining that issue is the application of the familiar three-fold test laid down in Caparo Industries plc v Dickman  2 AC 605, 618 per Lord Bridge."
163. In that context, the scope of any so-called "immunity" necessarily overlaps with the question, under the third part of that test, whether it is 'fair, just and reasonable' for the law to impose a duty of care at all (see Clerk & Lindsell On Torts 20th ed (2010), para 14-39ff 'Immunities'). As Lord Browne-Wilkinson has said: '… a holding that it is not fair, just and reasonable to hold liable a particular class of defendants whether generally or in relation to a particular type of activity is not to give immunity from a liability to which the rest of the world is subject. It is a prerequisite to there being any liability in negligence at all that as a matter of policy it is fair, just and reasonable in those circumstances to impose liability in negligence.' (Barrett v Enfield London Borough Council  2 AC 550, 559)
Claims against the police in relation to their core functions
Conclusions on the trial judge's findings
Imposition of duty and Proximity
Ground 2: the Recorder was wrong in law to apply a blanket immunity.
Ground 3: the Recorder was wrong in law to find that it required "outrageous negligence" to defeat the Hill principle.
Mr Justice Arnold:
Lord Justice Sullivan: