![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Mullaney v West Midlands Police [2001] EWCA Civ 700 (15 May 2001) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2001/700.html Cite as: [2001] EWCA Civ 700 |
[New search] [View without highlighting] [Printable RTF version] [Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CROWN COURT
AT BIRMINGHAM
Mr Recorder R Mitting QC sitting as a Deputy Judge of the High Court
Strand, London, WC2A 2LL Tuesday 15th May 2001 |
||
B e f o r e :
LORD JUSTICE CLARKE
and
MR JUSTICE BODEY
____________________
MULLANEY |
Claimant Respondent |
|
- and - |
||
CHIEF CONSTABLE OF WEST MIDLANDS POLICE |
Defendant Appellant |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Ralph Lewis QC, (instructed by Russell Jones & Walker,
represented the respondent)
____________________
Crown Copyright ©
LORD JUSTICE CLARKE:
Introduction
The Injuries
The Decision
The Appeal
The Facts
"[The claimant's] account is that at 7.55 he was in the telephone kiosk opposite the Greyfriars Green lavatories. He went to the public lavatories underground which are shown in photograph six. He crossed the road and went down the stairs. He estimates it took him some 20 to 30 seconds to do that. He stood at one of the two urinals in the lavatories, the one nearest the stairs. He observed another man at the other urinal, for about two minutes. Another man (in fact, Mr Corlett) then came in and stood at the same urinal as the claimant. These events, accepting the claimant's starting time, as I do, must have taken place some time between 7.57 and 7.58. Mr Corlett very quickly started to masturbate and to look suggestively at the claimant. He then turned towards him with an erect penis, and the claimant then identified himself as a police officer and arrested him for importuning. The arrest was an unlawful arrest. The claimant's estimate of the time from Mr Corlett's arrival in the lavatory to his arrest is about half a minute. That may be slightly understated.
Allowing, as one must, for the impossibility of estimating times precisely, I am satisfied, on the balance of probabilities, that the arrest took place some time between 7.58 and 7.59, probably nearer to 7.58 than 7.59.
The other man (who had been observed by the claimant for two minutes at the other urinal) left, leaving the claimant and Mr Corlett alone. Mr Corlett resisted arrest. Blows were exchanged. They were not vicious or serious but they led the claimant to uttering further words of arrest for assaulting a police constable.
The claimant then made the first of five radio transmissions, four of them on channel seven. All he was able to transmit was his collar number. He did so by pressing the button on his tunic pocket. He did so, he told me, and I accept, within seconds of making his arrest. That would put the time not long after 7.58, certainly before 7.59. There was no response to his call.
The struggle continued. He made a second radio transmission, he says, some fifteen to twenty seconds after the first. He can't remember what was said. There was no response. That second transmission must have taken place some time between 7.59 and 8.00, probably nearer to 7.59.
There was a lull in the fighting. The claimant tried to bluff Mr Corlett by claiming that there were police officers upstairs and the bluff worked for a while, but not for long, and Mr Corlett realised that there probably weren't.
Mr Corlett continued to get the better of the struggle. By then he had landed one blow to the claimant's chin and one to his mouth, which split his lip. The claimant was tiring but not, at that stage, seriously hurt. Mr Corlett then tried to get upstairs. The claimant then made the third radio transmission on channel seven. He put the time as well over a minute after the second. He cannot remember what was said. Again, there was no response. That radio transmission must have been made some time between 8 o'clock and 8.01, probably nearer to 8 o'clock.
He tried to handcuff Mr Corlett to the grill door into the lavatories. He failed, and Mr Corlett slammed his head hard against the grill on the right hand side. The claimant puts this incident about two minutes after his third radio transmission, in other words, about two minutes past eight. By this stage, he was tiring. Mr Corlett said: "You are not taking me in." The claimant then made a fourth radio transmission to which, again, there was no response. His recollection is that that was made about a minute after the incident involving the grill, in other words, at about three minutes past eight.
Mr Corlett ran off with the claimant in pursuit. He caught up with him above ground by the entrance to the ladies' lavatory. He slipped. Mr Corlett then repeatedly kicked him about the body and head. The claimant estimated that this part of the attack lasted about half a minute.
Mr Corlett ran off towards Bull Yard and Shelton Square. This part of the incident must have occurred some time between three minutes past eight and four minutes past eight.
Having failed on four occasions to raise assistance or even a response by channel seven, the claimant switched his radio transmitter so as to be able to transmit on the general police frequency, channel 46. This involved turning a dial and the channel was located simply by rotating the dial and locating the dial by clicking it at the right point. He told the controller (in fact, a Sergeant Heap at the police station) that he needed help. His estimate of the time at which he made that transmission is about four minutes past eight. About half a minute later, he says, a police car arrived in Bull Yard, which he had by then reached, a short distance from Greyfriars Green Public lavatory. The car was driven by PC Bell. The claimant was able to give a detailed description of his assailant to PC Bell and to the controller on the radio. He was then taken to hospital by PC Bell."
"I am satisfied on all of that evidence that a maximum of two minutes would have been the response time if the police at Lower Park Police Station had received and acted on any of the earlier messages. Therefore, if those police officers had received and responded to the first or second radio transmissions, a police car (almost certainly PC Bell's) would have arrived on the scene before the repeated kicking to the head of the claimant by Mr Corlett took place. The arrival of a police car would have forestalled or deterred such an attack by itself. Failing that, the police driver would have had ample time to come to the claimant's assistance before he slipped and fell and was kicked.
I am not satisfied, on the balance of probabilities, that an earlier response would have prevented such injury, if any, as was occasioned to the claimant when his head was slammed against the grill. The timing is too tight. Such a conclusion would place undue reliance upon the precise accuracy of the claimant's estimates of the times at which various stages of the incident occurred."
" Why was there no response to his calls? This is the key factual issue in the case. What should have happened? I have clear evidence from Sergeant McNaney as to what should have happened, which I accept. He says that PC McKirdy was on radio duty in the front office. He should have monitored radio traffic and coordinated the operation. If a call was received, he should have responded. If help was summoned or the caller sounded in trouble, he should have immediately contacted the controller, Sergeant Heap, on channel 46 who would himself immediately have put out a general call for help. If it was not obviously urgent, he should have tried to raise the caller, and if he could not, he should have notified Sergeant Heap that he could not, which would have caused Sergeant Heap to put out a general call for help directing police officers to go to the caller's aid. Thus, if PC McKirdy had done the duty assigned to him and the radio messages on channel seven had been clear, he should have heard the first call, attempted to raise the claimant and when he could not, notified Sergeant Heap. Even if he did not do so on receipt of the first call, he should have done so on receipt of the second."
" At 7.55 - - Mrs King cannot now say how she knew the time but says that it was imprinted upon her memory - - she heard the claimant's voice on the radio; a voice, she described as obviously in need of help, frightened and panicky. She thought that another member of the team would answer but there was no response. Soon after, she heard the claimant's voice again shouting his collar number. There was panic in his voice. It was obvious he needed help, but again there was no response. She and Mrs Caddick then left the front office to seek help in the canteen some distance from the front office. She looked inside the canteen and behind screens in it. There was no-one there. Mrs Caddick looked upstairs in the social club room over the canteen. There was no-one there either. Their efforts to get help took, Mrs King estimated, some two minutes from the time at which she heard the second call to returning to the front office. As they returned to the front office, they saw PCs Gaston and Burn and McKirdy arrive at the front office. They collected their radios from the desk. They were rushing. She remembers a car leaving the yard with sirens on. Mrs Caddick's written account confirmed the evidence of Mrs King in detail
After the incident, Mrs King, but not Mrs Caddick, recalls PC McKirdy saying to her that he would have to invent a log, that is to say, a log of his observations, the observations which he should have been keeping from the front office. Mrs King also said that she was spoken to by Sergeant Heap who told her that if she was asked, to say and do nothing about the incident. Mrs King and Mrs Caddick flatly state that the evidence of PC Gaston and Burn, which contradict their account, is not true.
If the evidence of Mrs King and Mrs Caddick is true and reasonably accurate, it discloses a sorry state of affairs, first, serious dereliction of duty on the part of PC McKirdy secondly, a cover up of that dereliction of duty by the creation of a false log by Sergeant Heap; and thirdly, the giving of false evidence by PCs Gaston and Burn in this court to me.
Neither of the two critical participants in this incident, whose actions are the subject of criticism (PC McKirdy and Sergeant Heap) has given evidence, nor was any statement obtained from them by the senior officers investigating the matter on, and immediately after, the day on which it occurred: Detective Inspector Turner and Detective Inspector Hislop.
My first task is to assess the credibility of the three live witnesses whose evidence I have recounted; Mrs King, PC Gaston, PC Burn. Mrs King I found to be an impressive witness. She gave a clear account of events which were imprinted on her mind by their nature and by their consequence. She has since become a police officer herself despite the events that she has described, which might have caused another woman some disillusionment with the police service. I have asked myself if her sympathy for the claimant (which was evident) may have clouded her evidence. I am satisfied that it has not. I give as an instance of that, the evidence that she gave about what he said on departing early from his break. It does not tally with his own recollection. It might (on one view of the evidence) be thought to harm his case, but, even so, she gave that evidence unhesitatingly. I am satisfied that she told me the truth as she remembers it. I have reservations about the precise times given by her, but not about the basic structure of her account.
I found PC Gaston and (to a lesser extent) PC Burn to be profoundly unsatisfactory witnesses. I mentioned earlier in this judgment an arrest effected by PC Gaston to which PC Burn was a witness earlier on in the day. Neither of them had been on an importuning operation before. Both of them say they fully understood their powers of arrest for importuning. PC Gaston said initially that Sergeant McNaney had explained those powers of arrest at the briefing, but accepted, when Sergeant McNaney had denied doing so, that his recollection in that respect was wrong. He was unable to say how he learned what the powers of arrest were, other than by word of mouth from previous operations. That evidence about his understanding of the power of arrest was belied by PC Gainer a truthful witness, who said that he explained to PC s Gaston and Burn as well as to the claimant, that they could arrest for persistent importuning. It is also belied by their own actions at 4.20 that afternoon when PC Gaston arrested a suspect at the Greyfriars Green public lavatory. He made up his notebook not long after the incident perfectly properly and in conjunction with PC Burn. The relevant extract from his notebook is at page 111 and it reads, after describing observations of what he had seen of the suspect: "Stood at urinal, not urinating. Identified myself with warrant card," and then without any interruption or break, "You have been observed loitering in this toilet on two occasions. You are under arrest for importuning for immoral proposes. Caution. Reply. 'OK. Can you verify your address or details?' Reply. 'No.'"
PC Burn's note at page 108 is in identical terms. Those notebooks record an unlawful arrest. There would have been no shame in admitting it. The unlawful arrest arose from the inadequacy of the briefing that they had been given and the inadequacy of their instruction about the law relating to their powers. Instead, both pretended that words were said before the arrest which made it lawful, which inexplicably were not recorded in their note books. I do not propose to set out the contortions into which they were driven in an attempt to justify this stance. Anyone who wishes to examine them can read the transcript. This evidence was false and each knew it was false when it was given.
Although the incident is wholly peripheral, it undermined my confidence in the truthfulness and reliability of their evidence on more critical matters. That evidence was, itself, unconvincing in these respects: I was unconvinced by their inability to remember where they were or what they were doing between 7 pm and 8 pm. I was unconvinced by their inability to remember whether or not the two civilian employees were in the front office for any, or part of, the time. I do not believe that they had their radios with them switched on between 7.45 and 8 pm. If they had done, they would have heard the claimant's radio transmissions and responded.
I was also unconvinced by PC Gaston's suggestion that he might not have heard because of the alleged unreliability of channel seven. The lie to that assertion was given by PC Gainer who said that on that day, channel seven was as clear as a bell; and I am satisfied it was. PC Gaston's explanation for the odd passage in his evidence, which I have already noted, "We immediately required messages to be passed to channel 46. I believe PC McKirdy passed the message," produced a bizarre inconsistency when I asked him about it. He asked PC McKirdy to do it because it was quicker than doing it himself, but he said in answer to the previous question that he did not know if PC McKirdy's channel 46 radio was in the front office at all.
I do not believe that either of them were in the front office at all. I do not believe that either of them were in the front office when the claimant's messages came through or, more important, that PC McKirdy was. I do believe the evidence of Mrs King and Mrs Chaddick that none of those three officers was there.
The failure to hear and respond to the claimant's four radio messages on channel four was due, I am satisfied, to PC McKirdy's absence from his post. No explanation has been offered for that absence. His duties, the monitoring of radio traffic, the coordination of the operation and front office duties as the only uniformed police officer there, would not have taken him away. It is not suggested that he had an authorised break. There is simply no explanation for his absence. I am satisfied that his absence was not due to any good cause connected with the fulfilment of his duties. The circumstances of his departure from the police force may, in hindsight, provide a clue to why he was absent; he was required to resign or dismissed from the force (it matters not which) for driving with excess alcohol. I am satisfied (as the two civilian witnesses said) that he arrived on shift drunk and unable adequately to perform his police duties.
The reason, therefore, for the failure to respond to any of the first four transmissions, was PC McKirdy's absence from his post and his dereliction of duty in that respect. The reason for the failure of officers other than PCs McKirdy, Gaston and Burns involve no breach of duty by them. Sergeant McNaney had almost certainly , as he told me, turned his radio transmitter either off or down so as not to interfere with the other duties that he had as acting inspector which included frequent telephone calls me. PC Gainer had switched off his radio so as to interview the suspect that he had arrested and to avoid interruption of that interview.
Contrary to his evidence in his witness statement, I am satisfied that PC Cox also had his radio switched off because he regarded the operation as over. In his witness statement, he said that he had radioed the claimant on four occasions. I am satisfied that if he had done, the claimant would have heard him. Having, necessarily, his radio on for that purpose, he would have heard the claimant's calls for help.
What of Sergeant Heap's log at page 90? The impression that it gives is that PC McKirdy sent a message on channel 46, to Sergeant Heap giving the location, Bull Yard and the message: "1683 struggling with a prisoner." That was not the message broadcast by Sergeant Heap, which, as picked up by PC Bell, was: "Foot chase, and officer requiring assistance," probably adding: "In the vicinity of Greyfriars Green and Warwick Road." Nor was it what PCs Gaston and Burn say PC McKirdy said to Sergeant Heap which was simply the claimant's collar number and the fact that he required help. If PC McKirdy was not the source of the message recorded at page 90 in the form that it is, who was? I am driven, I am afraid, to the conclusion that it was an attempt, a clumsy attempt made on the night of the 27th, to conceal from senior officers PC McKirdy's dereliction of duty. Hence the statement which I accept was made to Mrs King by Sergeant Heap: "Say and do nothing."
Issues on this Appeal
Duty
Duty Owed by One Police Officer to Another
"The question of law which is opened up by this 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 persons 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."
Lord Keith answered that question in the negative, as can be seen from these two further remarks that he made in the context of his consideration of Dorset Yacht Co Ltd v Home Office [1970] AC 1004. He said (at p 63):
"Miss Hill was one of a vast number of the female general public who might be at risk from [Sutcliffe's] activities, but was at no special distinctive risk in relation to them, unlike the owners of the yachts moored off Brownsea Island in relation to the foreseeable conduct of the Borstal boys. … The alleged negligence of the police consists in a failure to discover his identity. But if there is no general duty of care owed to individual members of the public by the responsible authorities to prevent the escape of a known criminal or to recapture him, there cannot reasonably be imposed upon any police force a duty of care similarly owed to identify and apprehend an unknown one."
"That is sufficient for the disposal of the appeal. But in my opinion there is another reason why an action for damages in negligence should not lie against the police in circumstances such as those of the present case, and that is public policy. In Yuen Kun Yeu v Attorney- General of Hong Kong [1988] AC 175, 193, I expressed the view that the category of cases where the second stage of Lord Wilberforce's two stage test in Anne v Merton London Borough Council [1978] AC 728, 751-752 might fall to be applied was a limited one, one example of that category being Rondel v Worsley [1969] 1 AC 191. Application of that second stage is, however, capable of constituting a separate and independent ground for holding that the existence of liability in negligence should not be entertained. Potential existence of such liability may in many instances be in the general public interest, as tending towards the observance of a higher standard of care in the carrying on of various different types of activity. I do not, however, consider that this can be said of police activities. The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes. While some such actions might involve allegations of a simple and straightforward type of failure – for example that police officer negligently tripped and fell while pursuing a burglar – others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do so. The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and retraversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted. I therefore consider that Glidewell LJ in his judgment in the Court of Appeal [1988] QB 60, 76 in the present case, was right to take the view that the police were immune from an action of this kind on grounds similar to those which in Rondel v Worsley [1969] 1 AC 191 were held to render a barrister immune from actions for negligence in his conduct of proceedings in court."
Lord Templeman expressed similar views at pp 64-5.
"If no duty of care is owed by a police officer investigating a suspected crime to a civilian suspect, it is difficult to see any conceivable reason why a police officer who is subject to investigation under the Regulations of 1977 should be in any better position."
"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 [1982] 1 WLR 349 and Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242."
The facts of both Knightley and Rigby were so different both from the facts of Hughes and from the facts of the instant case, so that I do not think that it is of assistance to discuss them in any detail.
"Having considered Hill v Chief Constable of West Yorkshire on the one hand and Knightley v Johns and Rigby v Chief Constable of Northamptonshire on the other, in my judgment, as a matter of public policy, if senior police officers charged with the task of deploying what may or may not be an adequate force of officers to control serious public disorder are to be potentially liable to individual officers under their command if those individuals are injured by attacks from rioters, that would be significantly detrimental to the control of public order.
It will no doubt often happen that in such circumstances critical decisions have to be made with little or no time for considered thought and where many individual officers may be in some danger of physical injury of one kind or another. It is not, I consider, in the public interest that those decisions should generally be the potential target of a negligence claim if rioters do injure an individual officer, since the fear of such a claim would be likely to affect the decisions to the prejudice of the very task which the decisions are intended to advance. Accordingly, in my judgment, public policy requires that senior police officers should not generally be liable to their subordinates who may be injured by rioters or the like for on the spot operational decisions taken in the course of attempts to control serious public disorder. That, in my judgment, should be the general rule in cases of policing serious public disorders. There may be exceptions where the plaintiff's injuries arise, as in Knightley v Johns, from specifically identified antecedent negligence or specific breach of identified regulations, orders or instructions by a particular senior officer. There is no such specific allegation in the statement of claim in this case and none has been suggested in argument. It follows that the plaintiff's claim against the third defendant taken at its pleaded highest is bound to fail and that the claim should be struck out. I therefore allow this appeal."
"I now summarise relevant strands drawn from the cases. For public policy reasons, the police are under no general duty of care to members of the public for their activities in the investigation and suppression of crime (Hill's case). But this is not an absolute blanket immunity and circumstances may exceptionally arise when the police assume a responsibility, giving rise to a duty of care to a particular member of the public (Hill's case and Swinney's case). The public policy considerations which prevailed in Hill's case may not always be the only relevant public policy considerations (Swinney's case).
Neither the police nor other public rescue services are under any general obligation, giving rise to a duty of care, to respond to emergency calls (Alexandrou's case), nor, if they do respond, are they to be held liable for want of care in any attempt to prevent crime or effect a rescue. But if their own positive negligent intervention directly causes injury which would not otherwise have occurred or if it exacerbates injury or damage, there may be liability (the Capital and Counties Plc case).
For public policy reasons, a senior police officer is not generally to be held liable to a subordinate for operational decisions taken in the heat of the moment and when resources may be inadequate to cover all possibilities (Hughes's case). But a senior police officer may be liable to a subordinate for positive negligent intervention which causes injury to the subordinate and for particular failure or particular instructions given in breach of specific regulations which result in injury (Knightley v Johns). Just as circumstances may occur in which a police officer assumes responsibility in particular circumstances to a particular member of the public not to expose the member of the public to a specific risk of injury (Swinney's case), so in my judgment a police officer may in particular circumstance assume a similar responsibility to another police officer. The latter part of the last sentence is, I think, the only increment in this summary which goes beyond matters decided in the authorities to which I have referred. It is not in my view in any sense a difficult incremental step to take, since for obvious reasons the relationship between individual police officers working together is likely to be closer than any relationship between the police and particular members of the public. (Emphasis added)
If a police officer tries to protect a member of the public from attack but fails to prevent injury to the member of the public, there should in my view generally be no liability in tort on the police officer for public policy reasons. This is analogous to the law relating to the fire services and quite close factually to Alexandrou v Oxford. If a police officer tries to protect a fellow officer from attack but fails to prevent injury to the fellow officer, there should in my view generally be no liability in tort. The relationship between the two police officers is arguably closer than the relationship between the police officer and the member of the public, but the public policy considerations are essentially the same and are compelling. One such consideration is that in the circumstances liability should not turn on, and the court should not have to inquire into, shades of personal judgment and courage in the heat of the potentially dangerous moment.
But in this case, Inspector Bell acknowledged his police duty to help the plaintiff. Yet he did not, on the extraordinary facts found by the judge, even try to do so. In my judgment, his acknowledged breach of police duty should also incrementally be seen as a breach of a legal duty of care. The duty is a duty to comply with a specific or acknowledged police duty where failure to do so will expose a fellow officer to unnecessary risk of injury. Although I have expressed the duty so formulated as an increment, it is the same as, or very close to, the duty which founded liability in Knightley v Johns. There is also a sense in which Insp Bell (and perhaps the chief constable) assumed a responsibility, not absolute, for the plaintiff's safety. There is in my view in this case a strong public policy consideration to balance with those identified in Hill's case, that is that the law should accord with common sense and public perception. I am sure that Astill J was correct to say that the public would be greatly disturbed if the law held that there was no duty of care in this case. The particular circumstances of this case should not be left solely to internal police discipline. In addition, the public interest would be ill-served if the common law did not oblige police officers to do their personal best in situations such as these. The possibility of other sources of compensation is a relevant consideration, but not in my view more than that. Mr Robertson's floodgates submission is not more persuasive in this case than in others where there should be a duty. (Emphasis added)
An ingredient of my conclusion is that close relationship between Inspector Bell and the plaintiff. They were police colleagues and he was in close attendance for the specific purpose of coming to her help is she needed help. It would not therefore follow from this analysis that I would also have found a duty of care owed by a police officer to a member of the public in otherwise similar circumstances. The balance of public policy could, depending on the circumstances, then be different. (Emphasis added)
Conclusion
For these reasons, I consider that, on the extraordinary facts found by the judge, Inspector Bell was in breach of duty in law in not trying to help the plaintiff. The chief constable is vicariously responsible for that breach, but was not personally in breach."
"If the policeman assumes this task there is no reason of policy or proximity why he should be in any different position from a school teacher who performs this task and, if this is appropriate on the facts, is liable for negligence."
Duty Owed as Quasi-employer
"A statement of the relevant principle of law can be divided into three parts. First, an employer owes to his employee a duty to exercise reasonable care to ensure that the system of work provided for him is a safe one. Secondly, a provision of a safe system of work has two aspects: (a) the devising of such a system and (b) the operation of it. Thirdly, the duty concerned has been described alternatively as either personal or non-delegable. The meaning of these expressions is not self-evident and needs explaining. The essential characteristic of the duty is that if it is not performed it is no defence for the employer to show that he delegated his performance to a person, whether his servant or not his servant, whom he reasonably believed to be competent to perform it. Despite such delegation the employer is liable for the non-performance of the duty."
"Put another way can it be said that it is not "fair just and reasonable" to recognise a duty of care: Caparo Industries Plc v Dickman … ?"
It is thus clear that Lord Slynn regarded the general approach in Caparo as applicable to this class of case. Since, as stated above, the other members of the appellate committee agreed with his speech, even though the contrary does not appear to have been argued it seems to me that we should regard the duty of the chief constable as 'employer' to be subject to considerations of public policy.
"I do not consider that either of these cases is conclusive against the plaintiff in the present case. It is true that one of her complaints is the failure to investigate the assault on her and that if taken alone would not constitute a viable cause of action. But the complaints she makes go much wider than this and she is in any event not suing as a member of the public but as someone in an "employment" relationship with the defendant. Even the failure to investigate is part of her complaint as to that. Entirely different factors to those in Hill's case … arise.
She is not as in Calvelely's case … complaining of delays in the investigation or procedural irregularities."
"In this case the plaintiff relies upon the relationship of quasi-employee and quasi-employer which exists between her and the defendant as giving rise to his duty of care, and this was a factor absent in Calveley's and Hill's case.
I consider that in Swinney … Hirst LJ was right to state that where the police claim immunity against an action in negligence public policy must be assessed in the round, which means assessing the considerations referred to in Hill's case … together with other considerations bearing on the public interest in order to reach a fair and just decision."
"It was contended for the defendants that the negligence of Captain Sas was not negligence in failing to operate the safe system which he had devised. It was rather casual negligence in the course of operating such system, for which the defendants, since Captain Sas was not their servant, were not liable. I cannot accept that contention. The negligence of Captain Sas was not casual but central. It involved abandoning the safe system of work which he had devised and operating in its place a manifestly unsafe system. In the result there was a failure by the defendants, not in devising a safe system of work for the plaintiff, but in operating one. "
In the instant case, unlike Captain Sas, it was not PC McKirdy who had devised the system, but that is not to my mind material. It was his duty to operate it. His approach involved abandoning the safe system that had been devised and not operating in its place any system for the safety of the claimant at all. As a result the system provided for the claimant became an unsafe one. Just as in the case of Captain Sas, there was a failure by the defendants, not in devising a safe system of work for the claimant, but in operating one. The defendant was right not to argue the contrary.
"Mr Hytner submits … that the scope of the duty owed by an employer, and the chief constable is in the position of an employer, is the same whatever the nature of the employment, namely to take reasonable care to avoid exposing the employee to unnecessary risk of physical or psychiatric injury. The emphasis is on the word 'unnecessary'. It may be necessary for police officers to be exposed to risk of injury because of the nature of the duties they are required to perform. The necessary risk may be affected by lack of resources. But the chief constable has to take care not to expose his officers to unnecessary risk by sensible policies and by seeing that subordinates take care to implement those policies. The scope of the duty varies widely according to the nature of the employment. Some jobs are inherently dangerous, some very dangerous (for example firemen, stevedores and police officers) and employers cannot reasonably protect their servants from all foreseeable danger. On the contrary they may be obliged knowingly to expose them to foreseeable risk of death, as if a fireman is instructed to enter a burning building to rescue a child."
"On the facts, an important element of a safe system of conducting this operation was not operated by PC McKirdy. His dereliction of duty was not a decision taken in the heat of the moment of a violent struggle or something of that nature, nor was it a policy decision on the allocation of resources by the chief constable. In respect of either such type of decision, it is possible – on the current state of the law, highly likely – that policy considerations would negative the existence of a duty of care.
…
It is reasonable that the duty should have been imposed. The duty is not owed to the whole world but, on the facts of this case, to a very limited class, five police constables only. Even in other cases, the task would be limited to those officers within the force of which the chief constable was head or perhaps other officers working with or seconded to that force.
The existence of the duty would not have impaired police operations or made them less efficient. Indeed, in similar circumstances in the future, it may encourage senior officers to take steps to ensure that junior officers perform their duty and have proper regard for the safety of those working under and with them."
Breach of Duty
Breach of Duty Owed as Quasi-employer
Duty Owed by One Police Officer to Another
Causation
The Log
Contributory Negligence
"At 7.55 on 27th March, the claimant had no reason to fear an attack of such violence as would cause serious injury to him. His two previous arrests had been achieved without incident. He knew he had a radio, switched on, tuned into channel seven, to which all, or virtually all, of the other members of the team would be listening. Indeed if they had been, he would not, on the findings that I have made, have suffered the serious injury to his head which resulted from the repeated kicking. Furthermore, he was doing what he honestly and reasonably believed to be his duty. Police officers should not be discouraged from doing their duty by fear of a finding of contributory negligence against them if, in consequence of a misjudgment, they sustain injury. On balance, therefore, I do not consider that his misjudgment in entering the lavatories amounts to negligence of his own safety or that his misjudgment was materially responsible for his injuries to adopt the statutory test under section 1 of the Contributory Negligence Act 1945"
Costs
CONCLUSION
LORD JUSTICE POTTER:
MR JUSTICE BODEY