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.

The imposition of a duty of care on the police for operational activity

It is important to clarify what this case was about. It has never been in dispute that the police can be liable in tort to those injured as a direct result of acts or omissions by the police: see, for example Hill v Chief Constable of West Yorkshire Police [1989] AC 53, [59B-C]. The police have always been liable for assault, battery, false imprisonment, malicious prosecution, misfeasance in public office, negligent driving and such like. To that extent, there has never been a blanket "immunity" from suit enjoyed by the police for all operational conduct.

However, the courts have tended to not impose duties of care on the police for harm caused by others. A classic example is the failure to protect a victim from the harm threatened by a third party. The courts have been careful to protect operational decision making in those circumstances. It has been stressed that the question of whether the harm from a third party resulted from a positive act or from an omission by the police should not justify a different outcome and that the distinction was unmeritorious: Brooks v Commissioner of Police for the Metropolis [2005] 1 WLR 1495 at [32] and repeated in Michael v Chief Constable of South Wales Police [2015] 1 AC 1732 at [51].

In Robinson the Court considered that there was a key difference between positive acts (a duty will be imposed) and omissions (no duty imposed). The act of arresting someone was a positive act. Where an arrest is negligently performed, the police are liable not only for any injury caused to the person being arrested, but also for any injury that the person who is being arrested causes to another person, so long as that injury is a foreseeable consequence of the police’s positive actions.

Given the particular context of police work, this potentially exposes the police to a wide liability for their positive acts. Liability is still unlikely to arise (at common law at least, although it may arise under the Human Right Act 1998) where the police do not act in accordance with their core duties – for instance where the police do not identify or arrest a suspect before that suspect is able to commit a further offence.

The Supreme Court reviewed the various authorities on the civil liability of public authorities and gave a useful summary and explanation of the development of the law from [31] onwards:

"public authorities are generally under a duty of care to avoid causing actionable harm in situations where a duty of care would arise under ordinary principles of the law of negligence, unless the law provides otherwise" [33];

"[P]ublic authorities, like private individuals and bodies, are generally under no duty of care to prevent the occurrence of harm: as Lord Toulson stated in Michael, 'the common law does not generally impose liability for pure omissions'" [para 34];

"That is so, notwithstanding that a public authority may have statutory powers or duties enabling or requiring it to prevent the harm in question." [36];

"public authorities, like private individuals and bodies, generally owe no duty of care towards individuals to prevent them from being harmed by the conduct of a third party" [37];

A duty can be owed for the harm caused by a third party:

"[W]here the public authority has created a danger of harm which would not otherwise have existed, or has assumed a responsibility for an individual’s safety on which the individual has relied" [37].

From [43] onwards the Supreme Court considered the line of authorities that started with Hill and were relied on by the Court of Appeal in demonstrating that no duty of care would be imposed in the circumstances of this case. The Court determined that there was nothing in those previous authorities that was inconsistent with the imposition of a duty of care. Central to that analysis was the Court’s approach to the circumstances of Robinson, namely that the act of arresting W was a positive act rather than an omission to act which had characterised the previous cases where it had been held that no duty of care should be imposed on the police.

Defendant police lawyers may, notwithstanding the differences between acts and omissions, find the Supreme Court’s approach difficult to reconcile with the repeated statements of public policy in the previous authorities. They might find some consolation in Lord Hughes (from [102] onwards), who did not think that the distinction between positive acts and omissions was the sole explanation for the previous decisions protective of the police. Public policy was, he said, the "ultimate reason" for the previous decisions against the imposition of a duty [118].

However, it follows that those previous cases must now be treated with great caution. For example, the Court gave the following description of the Court of Appeal’s summary of the law in Desmond v Nottinghamshire Police [2011] EWCA Civ 3 – which was previously thought to be entirely accurate:

"That summary of the law appears to treat the police as being generally under no duty of care when undertaking and performing their operational duties, other than in special circumstances... In short, while it is not suggested in the present case that the decision in Desmond was wrong, the particular passage relied on is not an accurate summary of the law." [67].

Breach of duty

The bad news for Chief Constables does not stop with the characterisation of an arrest as a positive act that is causally connected to the various events that may follow, including injuries caused to third parties. The Supreme Court endorsed the approach of the trial judge who had undertaken a detailed analysis of the planning and performance of the arrest and made a finding of negligence [75] – [78]. This does not sit comfortably with apparent reassurance given by the Court that the breach of duty will have to be assessed in the proper context of pressured decision making [75] and [121].

The Supreme Court’s willingness to take a different view from that firmly expressed by the Court of Appeal in this case will also interest police lawyers. In this case, the police had made a series of operational decisions. They had intentionally waited for the arrival of officers to make the arrest. There were at least four officers present at the time, to arrest one man. Whilst the second two officers arrived after the first two had taken hold of W, this was a delay of a couple of seconds only. Further, that was done deliberately and for a proper operational reason, to avoid frustrating the arrest. The officers had made an operational assessment that the arrest needed to be made at that point in time.

The officers had, at trial, accepted that there was a risk W may seek to escape and also that they generally try to minimise the risk to the wider public when performing arrests. The Supreme Court found this was sufficient to base a finding on negligence.

Conclusions - what does this mean in practice?

This case does not change the law so far as it applies to positive acts done by the police that directly result in harm. The police have always been subject to duties of care in such circumstances. However, this decision does amount to a substantial erosion of the previously understood limits on that liability. It directly addresses arrests but there is no reason for why it does not extend to other forms of 'positive act' done by the police in the operational sphere resulting in harm by a third party – for instance a high speed pursuit where the car being pursued injures a pedestrian or another driver.

In both Brooks and Michael, the point was made with force by the court that whether a situation is characterized as a positive act or omissions can merely depend on how it is described and that the distinction is not meritorious. It is now clear that where a positive act can be identified, the fact that it relates to a core function of policing will not prevent a duty being imposed.

This decision also demonstrates how closely a courts will examine operational planning and performance. It is suggested that in many circumstances it may not be too difficult to demonstrate some failing by the police when the facts of a fast moving police operation are subjected to precise, slow-time analysis by lawyers in court. Where someone has been injured (as is necessarily the case for a claim to be considered at all) that will be all the easier.

Foreseeability of harm will also prevent no difficulty for claimants - the submissions will be that it is surely foreseeable that a person may resist arrest and put themselves and others in danger.

Robinson certainly amounts to a potentially significant area of liability on police forces that will be an unwelcome development for forces already dealing with the ramifications of budget cuts. But what of police officers? Only time will tell if this decision actually results in a more defensive approach to arrests, but it can perhaps be seen how it might. Police officers will now have to ask themselves, when they are considering making an arrest, whether they should wait for back up before arresting someone in case the offender resists and injures a member of the public. This leads to many other questions – how long should the officer wait for back up, how many additional officers are needed, what if no back up is available, what if the offender is in the middle of committing an offence, or starts making off. These questions, which an officer is expected to answer for themselves in a split second – will all to be subjected to intense scrutiny in negligence cases from now on.

A new line of authority in the common law lies ahead to be discovered.