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The Robinson Case: Arresting Misconceptions about Police Negligence Liability

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About The Author

Bláthnaid Breslin (Joint Editor-in-Chief)

Bláthnaid recently graduated from the University of Nottingham with a first class degree. She is currently undertaking the BPTC in London, funded by a Lord Denning scholarship, and will begin the BCL at Oxford in September. She has a particular interest in land law and social housing. Outside the law, Bláthnaid is a talented tennis player who played for the University of Nottingham Ladies’ II Team.

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The police are the public and the public are the police.

Robert Peel

The Supreme Court’s recent decision in Robinson v Chief Constable for West Yorkshire [2018] has corrected previous understandings of the law of negligence in two important ways. Firstly, it decided that Caparo v Dickman [1990], while still good law, is not a standard test for the imposition of a duty of care: from now on, the finding of a duty of care will depend on whether the instant case falls within a category of liability previously recognised by the law, or whether such categorisation can be extended by analogy.

For example, it is well established that drivers owe a duty of care to one another, and (at least since the Supreme Court decision in Robinson [2018]) that individuals owe a duty of care for the foreseeable consequences of their positive acts. The three-stage test from Caparo v Dickman [1990] will therefore only apply to novel situations, where precedent or analogy do not provide the court with an obvious answer. Secondly, the Supreme Court decided that the police are not immune to liability in negligence: a duty of care may be imposed on the police in the same situations as it may be imposed on any private individual.

The decision is both a landmark decision – in that it reverses beliefs previously understood to have been well-settled in the law of negligence – and an unsurprising one, in that the principles stated by the Supreme Court are unlikely to be controversial and are, according to the Supreme Court at least, the principles which the law had intended to follow all along.

Indeed, in the view of Lord Reed, the two legal positions that Robinson [2018] can be taken to correct stemmed from misinterpretations of the law: Caparo v Dickman [1990] had never intended to impose a litmus test for the establishing of a duty of care in tort; Hill v Chief Constable for West Yorkshire [1987] (often cited as authority for the proposition that police are immune to negligence claims) expressly accepted that the police may be liable in negligence.

This article explores the potential origins for these misinterpretations, and offers three possible explanations for the misinterpretation of Caparo v Dickman [1990], and two possible answers for the misinterpretation of Hill [1987].

Robinson v Chief Constable for West Yorkshire

The Facts

Four police officers attempted to arrest a suspected drug dealer on Huddersfield High Street. None of the officers noticed that Mrs Elizabeth Robinson (R), aged 76, was standing nearby; but they did foresee the possibility that the dealer would attempt to resist arrest.

The dealer did try to escape, and in the course of the struggle between him and the police, three men landed on top of R. As a result, she suffered injury. The questions for the court were: did the police owe R a duty of care? And if so, were they immune to liability in negligence on public policy grounds?

The Decisions

At first instance, Mr Recorder Pimm found that the police did owe R a duty of care, and that on the facts of the case it had been breached. However he also found that the police were immune to negligence liability, on public policy grounds, and he therefore found in favour of the Chief Constable.

The Court of Appeal in Robinson v Chief Constable of West Yorkshire Police [2014] reached the same result but used different reasoning. It found that no duty of care was owed to R; having applied the test from Caparo v Dickman [1990], it was found that most claims against the police will fail at the third stage because:

It will not be fair just and reasonable to impose a duty [on the police] because the courts have concluded that the interests of the public will not be best served by imposing a duty to individuals.

The Supreme Court, however, reversed the lower courts’ decisions. It found that there was a duty of care owed by the police – on the grounds that R’s injury was a foreseeable consequence of the police act of attempting arrest – and that liability could not be excluded on public policy grounds.

Misconception One: Caparo v Dickman

The Decision in Caparo v Dickman

Before Caparo v Dickman [1990], the leading case that set out when a duty of care in negligence will be found was Anns v Merton LBC [1977]. Here, the House of Lords rejected an approach to the imposition of a duty of care based on established categories of liability, and introduced a two-stage test:

  1. Is there a sufficient relationship of proximity between the claimant and the defendant so that injury to the claimant was a foreseeable consequence of the defendant’s actions?
  2. If yes, were there any considerations existing which ought to negative, restrict or limit the scope of the duty of care?

However, the test in Anns v Merton LBC [1977] proved to be too broad: upon failing the first ground, a defendant could only escape liability by relying on considerations of public policy and fairness. This was recognised by Lord Bridge in Caparo v Dickman [1990], where he observed that a number of decisions after Anns v Merton LBC [1977] had:

[E]mphasised the inability of any single general principle to provide a practical test which can be applied to every situation to determine whether a duty of care is owed and, if so, what is its scope.

According to Lord Bridge, the primary ingredients that formed the substance of a duty of care include: the foreseeability of damage, the existence of a relationship of proximity or neighbourhood, and a situation in which the court considers it fair, just and reasonable to impose a duty of care. However, in the very next sentence Lord Bridge repeated the inability of a single test to consistently provide answers. He confirmed that:

[T]hese additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope.

And later in the same paragraph, Lord Bridge expressed his preference for reliance on categories of ‘distinct and recognisable situations’ to guide the court in imposing a duty of care. Notably, this is the very approach which the law has now taken.

The three-stage test for a duty of care, apparently established by Caparo v Dickman [1990], was therefore sandwiched between two qualifying statements which have been often overlooked. Lord Reed pointed this out in Robinson [2018], where he stated that:

It is ironic that the… passage in Lord Bridge’s speech has been treated as laying down such a [general] test, despite… the pains which he took to make clear that it was not intended to be any such thing.

Why Caparo v Dickman Got Lost in Translation 

Answer 1: The Shadow of Anns

Anns v Merton LBC [1977] was decided in 1978. By the time Caparo v Dickman [1990] reached the House of Lords, it was generally accepted that the test from Anns v Merton LBC [1977] was too broad to be workable: it was too inclusive, and it failed to distinguish foreseeability from proximity. Caparo v Dickman [1990] was a response to these difficulties.

Therefore, although Lord Bridge did not consider that one test could provide the answer, the House of Lords did nonetheless intend to replace the test from Anns v Merton LBC [1977]. It is therefore understandable that the decision might have been understood to replace an old test with a new one.

Answer 2: Economic Liability

The claimant in Caparo v Dickman [1990] was suing the auditors of a company for negligence in preparing the company accounts. The claimant had bought shares in that company, having relied on those accounts; the damage suffered was therefore purely economic. Hedley Byrne v Heller [1963] had already recognised pure economic loss as a distinct category of negligence, with its own unique considerations. Even while Caparo v Dickman [1990] was understood to lay down a three-stage test of general application, the law had recognised that economic loss was a separate category in itself.

It is therefore unsurprising that the ‘category-based’ approach advocated by the House of Lords in Caparo v Dickman [1990] got lost in translation: any reference to categorisation might have seemed insignificant in an area accepted to constitute a separate category.

Answer 3: Bingham LJ in the Court of Appeal

The House of Lords adopted the approach – if not the final decision – of Bingham LJ in the Court of Appeal in Caparo v Dickman [1989] QB 653. Bingham LJ, as he then was, had introduced the three considerations of foreseeability, proximity and fair, just and reasonableness. Each of the judges who gave full decisions in the House of Lords referred to these considerations.

Although Bingham LJ recognised that previous case law provided ‘no simple ready-made solution to the question whether or not a duty of care exists’, he found that there were requirements necessary to be satisfied before a duty of care could be found. It is therefore understandable why the adoption by the House of Lords of the three considerations – if not intended to indicate a universal approach – might be understood to have done so.

There is also a fourth potential answer to the question of why the law took a wrong turn: four judges of the House of Lords gave substantial judgments in Caparo v Dickman [1990], each of which offered its own nuance to the discussion; the overall effect of this was to cloud the true decision of the court.

Misconception Two: Police Immunity

The argument that police enjoy a general immunity from suit in negligence was successful before both the first instance judge and the Court of Appeal in Robinson v Chief Constable of West Yorkshire Police [2014]. However, thanks to the Supreme Court's decision in Robinson [2018], it is now firmly established that this was based on a misconception, and the police may be liable in negligence in the same way as any private individual.

Origins – The Decision in Hill v Chief Constable for West Yorkshire

Hill [1987] was decided in 1987; it was a claim brought by Jacqueline Hill (H), the mother of the final victim of the Yorkshire Ripper. She alleged that the police were negligent in their duty of investigating and preventing crimes. The case concerned an application to strike out the statement of case, so The House of Lords assumed that the facts pleaded were true: that such failures had occurred, and that had the investigation been carried out properly, the Ripper would have been caught earlier, and that H’s daughter would have survived.

Despite subsequent misinterpretation of  Hill [1987] – that the case set down a general principle that the police enjoy immunity from suit in negligence on the grounds of public policy – Lord Keith recognised that:

[T]here 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.

Answer 1: The Shadow of Anns

In Hill [1987], Lord Keith found that there was no duty of care owed to the claimant: in his view, the first stage of the Anns v Merton LBC [1977] test was not satisfied. The necessary relationship of proximity did not exist between the police and H’s daughter: the police did not create the danger (the danger was created by the Yorkshire Ripper); nor did they have any special control over the danger; they could not be said to have accepted responsibility for the safety of H’s daughter by reason only of undertaking to investigating the crime, as she was one of a large number of potential victims.

Lord Keith therefore found that although the police owe a public law duty to the general public to protect them, and to prevent crimes, this does not translate into a private law duty of care towards each individual member of the public. The finding was alone ‘sufficient to dispose of the claim’.

However, Lord Keith went on to analyse how the facts of Hill [1987] would interact with the second stage of the test from Anns v Merton LBC [1977]. It is this element of his decision that has caused confusion. As Lord Reed in Robinson [2018] noted, drawing upon Lord Toulson’s reasoning in Michael v The Chief Constable of South Wales Police [2015] to the same effect:

[I]f Lord Keith had stopped at that point, it is unlikely that the decision would have caused controversy. However, having observed that what he had said was sufficient for the disposal of the appeal, Lord Keith went on to discuss the application of the second stage of the approach laid down in Anns v Merton LBC.

Thus Lord Keith in Hill [1987] considered whether there any considerations which tended against the imposition of a duty of care. Lord Keith’s answer was ‘yes’: there were substantial public policy considerations which justified the police not being found liable. For example, he argued that the imposition of a duty of care might lead to defensive police practices; it might also interfere with the exercise of police discretion by indirectly affecting the allocation of their limited resources, and the way in which they conduct investigations.

This reasoning has been relied on in a number of cases for the proposition that the police may not be sued in negligence, as the imposition of a duty of care is undesirable and contrary to public policy. However, according to the Supreme Court in Robinson [2018], Lord Keith’s express acceptance of police liability on normal principles of negligence meant he cannot have intended the second ground to be of such general application. Indeed, Lord Reed in Robinson [2018] observed that Lord Keith’s discussions must be looked at in its historical context:

[T]he reasoning… reflects the period during which the case was decided, when Anns continued to be influential.

This is correct: the discussion of public policy was necessary to fulfil the test for a duty of care that prevailed at that time (and was subsequently overruled in Caparo v Dickman [1990]). Combined with Answer 2, it is unsurprising that Lord Keith’s statements were relied on by future lawyers for the police to justify a general immunity to liability in negligence.

Answer 2: The Generality of the Words Used 

Lord Keith’s discussion of the public policy considerations which militated against the imposition of a duty of care was broad, and therefore potentially applicable to the majority of actions undertaken by the police. Indeed, they could cover (and were argued by counsel for the Chief Constable as covering) the actions of the police in Robinson [2018]. For example, Lord Keith held that:

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… The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion [that] would not be regarded by the courts as appropriate to be called in question.

It is certainly understandable why such statements were relied on by lawyers for police in subsequent cases, therefore contributing to the mistaken understanding that the police owe an immunity in the law of negligence.

Conclusion

The Supreme Court in Robinson [2018] has corrected two mistakes which previously existed in the law of negligence. Both were explicable and understandable; but there can be no doubt that the current approach of the law is the right one. Certainly, Caparo v Dickman [1990] was never intended to lay down a litmus test for the imposition of a duty of care, and it is right that the police should be liable, for example, for driving their cars negligently.

The Supreme Court in Robinson [2018] expressly retained the existing positive act-omission distinction, on which the police can rely to avoid liability for failing to prevent harm to a victim from a third party, as occurred in Michael [2015]. Thus the first ground for the decision in Hill [1987] is left intact.

However, when it comes to positive acts resulting in foreseeable physical injury to claimants, in circumstances where any other member of the public would be found liable in negligence, police liability accords with common sense.

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Tagged: Justice, Policing, Supreme Court, Tort Law

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