The judgement in Robinson v Chief Constable of West Yorkshire Police1 was given on 8th February 2018. The case was heard by five Supreme Court judges. The principal question to be decided was whether two police officers owed a duty of care to Mrs Robinson and, if so, whether they had breached this duty.
The judgement is a momentous one because it changes the direction of the law of negligence. Lord Reed in his judgement (with whom Lady Hale and Lord Hodge agree) expressed the following point:
Most of those issues can be decided by applying long-established principles of the law of negligence. The fact that the issues have reached this court reflects the extent to which those principles have been eroded in recent times by uncertainty and confusion.
In the same breath, he cast doubt on the long-standing method by which negligence cases have been decided:
The proposition that there is a Caparo test which applies to all claims in the modern law of negligence, and that in consequence the court will only impose a duty of care where it considers it fair, just and reasonable to do so on the particular facts, is mistaken.
The Caparo test, a favourite of law students, is now only to be applied in novel situations, and not to create or deny duties of care which have previously been found by the courts. Thus, it seems that the principles in the law of negligence must be clarified. I will therefore analyse the judgement given in Robinson and the implications that this may have on the law of negligence.
In July 2008, Mrs Robinson, described in the judgement as a ‘relatively frail lady then aged 76’, was walking along a shopping street in Huddersfield. She was knocked over by a group of men struggling with each other. Two of the men were police officers and the third was a suspected drug dealer (Williams) whom they were attempting to arrest. Mrs Robinson fell beneath the men and she suffered injuries as a result of this. Two back-up officers arrived shortly after this
The Recorder found that the decision to arrest Williams involved a foreseeable risk that Mrs Robinson would be injured. She was in very close proximity to Williams at that moment. She was an elderly lady. There was a significant and foreseeable risk that Williams would try to escape. In the view of the Recorder, the officers had acted negligently for the following reasons:
However due to the decision in Hill v Chief Constable of West Yorkshire,2 the Recorder held that the police had an immunity against claims in negligence. The Court of Appeal in Desmond v Chief Constable of Nottinghamshire Police3 made it clear that immunity was not confined to cases of omission.
By contrast, the Court of Appeal held that no duty of care was owed in the first place. They said that even if the two police officers had owed Mrs Robinson such a duty, they had not acted in breach of it.4 Applying the Caparo test, Hallett LJ considered that “most claims against the police in negligence for their acts and omissions in the course of investigating and suppressing crime and apprehending offenders will fail the third stage of the Caparo test” (para 46). They considered it not to be fair, just and reasonable to impose a duty of care because “the courts have concluded that the interests of the public will not be best served by imposing a duty [on] to individuals”.
Hallett LJ accepted that there may be exceptions to this, such as in cases of outrageous negligence, a case not relating to their core functions or where police had assumed responsibility for the claimant. However, Hallett LJ did not consider this case to fall within any of these exceptions.
Hallett LJ also rejected that there was proximity between Mrs Robinson and the police officers. It was not enough that there was a reasonably foreseeable risk of her being injured in the course of the officers carrying out the arrest. She also criticised the Recorder for acting as if he were an expert in the arrest and detention of suspects. She did not believe the officer could have waited to arrest Williams; the delay of three seconds in the other two officers arriving at the scene did not deserve criticism.
At paragraph [30], Lord Reed asserted that “the existence of a duty of care does not depend on the application of a “Caparo test” to the facts of the particular case. In the present case, it depends on the application of established principles of the law of negligence.” The Caparo test only applies in novel situations where established principles do not provide an answer that the ‘just, fair and reasonable’ criteria must be relied upon. The case at hand concerned applying established principles of the law of negligence, meaning that the existence of a duty of care was not dependent upon satisfying the Caparo test.
As Lord Keith in Hill stated:
“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.”
Drawing emphasis on his words of ‘like anyone else’, the Supreme Court in Robinson highlighted that these words indicate that the police are subject to liability for causing personal injury in accordance with the law of tort.
After an in-depth analysis of the case-law, the court decided at paragraph [70] that there is no general rule that the police are not under a duty of care when discharging their function of preventing and investigating crime. Public bodies are generally under no duty to prevent the occurrence of harm - Lord Toulson in Michael v Chief Constable of South Wales5 stated that “the common law does not generally impose liability for pure omissions” (para 97).
However, the police generally owe a duty of care where this duty arises under the usual principles of the law of negligence, unless statute or common law says otherwise. They may therefore be under a duty of care to protect an individual from danger of injury which they have themselves created. However, the police are not usually under a duty to protect individuals from such a danger that they have not created. This includes injury caused by the conduct of a third party, in the absence of the exceptional circumstances such as assumed responsibility.
They deemed that the case concerned dealt with a positive act; the defendants played an active part in the critical events, unlike the police authority in Michael or Hill who did not. It was not just reasonably foreseeable that Williams would resist arrest, but actually foreseen by the police officers considering they called for back-up. The officers were attempting to arrest Williams in a busy shopping street where pedestrians were walking by. It was reasonably foreseeable in those circumstances that if the arrest were attempted there, nearby pedestrians may get knocked down in the course of him attempting to escape. This imposed a duty of care on the police officers towards pedestrians in the immediate vicinity when the arrest was attempted.
Whilst the Court of Appeal were right to stress the importance of not imposing unrealistic standards of care upon police officers, the Recorder was entitled to find negligence on the basis that Willan had not noticed Mrs Robinson despite her being within a yard of him.
Williams’ action of resisting arrest also did not constitute a novus actus interveniens here. The voluntary act of a third party cannot break the chain of causation where it is an act that the defendant was under a duty to guard against (Dorset Yacht6).
Lord Mance and Lord Hughes agreed with the majority decision that the finding of negligence by the Responder should be restored and that the case involved a positive act. Their reasoning for this, however, differed. Lord Mance concluded that the direct physical interface between the police and the public in the course of arrest and detention, falls within an established area of general police liability for positive negligent conduct which foreseeably and directly causes physical injury.7
Lord Hughes, meanwhile, referred to policy considerations which impose limits on the duty of care which police owe to individuals. He thought that these policy considerations are the ultimate reason why there is no duty of care imposed on police officers engaged in the investigation and prevention of crime towards victims, suspects or witnesses; the greater public good requires the absence of any duty of care. Instead, there is only “a duty of care imposed on police officers not by positive action to occasion physical harm or damage to property which ought reasonably to be avoided” [120].
Lord Reed’s emphasis was that policy considerations are not a routine aspect in deciding negligence cases and are unnecessary when existing principles provide a clear basis for the decision. Lord Hughes recognised this, and that policing may sometimes involve unavoidable risks and a balancing of choices. The question is not whether the decision was wrong with hindsight, but whether the decision was in fact reasonable in the circumstances.
The case of Hill can no longer be considered as authority for the proposition that the police enjoy an immunity in respect of anything that they do in the course of investigating or preventing crime. Rather, the effect of the case is that the police do not owe a duty of care, in the absence of certain exceptions, to protect the public from harm by failing to prevent crime. The police may therefore be under a duty of care to protect an individual from danger of injury which they have themselves created. The injury caused to Mrs Robinson, for example, was caused by the officer’s breach of care. She was injured as a result of being exposed to the danger that they had a duty to protect her from.
This seems to distinguish between cases of positive acts and ones of omission where the police failed to do something, but this was not central to the critical facts of the case. In such cases, the police did not create the danger that led to the harm but merely failed to prevent it.
It seems that this latest case in the law of negligence has helped to clarify the principles that govern this area. When reflecting upon Lord Reed’s comments of the law in this area being clouded by confusion and uncertainty, this is arguably a welcome development.
