ROBINSON V WEST YORKSHIRE POLICE [2014] EWCA Civ 15
Child Abuse Website – Duty of Care – Actions against the Police
 
FACTS:-
The Claimant was walking down a relatively busy street in Huddersfield when she became caught up in the arrest of a drug dealer. She was knocked to the ground and injured. She sued the local Chief Constable for damages for personal injury. The question for the court was the extent to which the Chief Constable was liable, if at all, in negligence for what happened to her.
The allegedly negligent officer was on an unrelated errand when he spotted a man dealing in 'Class A' drugs. He contacted a senior officer about what he should do. It was agreed he should make an arrest as quickly as possible, and preferably whilst Williams was still in possession of the drugs. He called for back up and considered possible locations for the arrest. He concluded it had to be on the street.
Regrettably the man to be arrested struggled so violently, that his momentum took the group up the street towards the Claimant, colliding with her.
The trial judge found that the arrest had called for more careful planning and elimination of risk than that demonstrated. This was a case of negligence but not outrageous negligence. 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 had to be dismissed.
JUDGEMENT:-
Lady Justice Hallett dealt with the various grounds of appeal.
Ground 1: the Recorder was wrong in law to apply the three- stage ("Caparo") test to the Appellant's case of direct physical harm
Hallett LJ referred to the following cases:-

• Donoghue v Stevenson [1932] AC 562
• Home Office v Dorset Yacht Company Limited [1970] AC 1004
• Hedley Byrne v. Heller [1964] A.C. 465
• Caparo v Dickman [1990] 2 AC 605
• Hill v Chief Constable West Yorkshire Police [1988]
• Knightley v Johns [1982] 1 All ER 851, [1982] 1 WLR 349
• Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985, [1985] 1 WLR 1242
• Gibson v Orr 1999 SC 240
• An Informer v A Chief Constable [2013] QB 579
• Costello v Chief Constable of Northumbria [1999] ICR 752
• Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242
• Elguzouli-Daf v Metropolitan Police Commissioner and McBrearty v Ministry of Defence [1995] QB 335
• Marc Rich & Co. AG v Bishop Rock Marine [1996] 1 AC 211
• Brooks v Commissioner for Police [2005] All ER 489
• Van Colle and another v Chief Constable of Hertfordshire [2009] 1 AC 225.
• Desmond v. Chief Constable of Nottinghamshire Police [2011] All ER (D) 37 [2011] EWCA Civ 3.

In the case of Hill, the House of Lords had decided that the police had immunity from a civil action against them for failing to prevent the death of one of the victims of the Yorkshire Ripper. Hall LJ said that the core principle of Hill remained.  In that case, Lord Steyn said at paragraph 30:-
"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:"
In Desmond, the court said:-
"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 [1982] 1 WLR 349; Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242; Gibson v Orr [1999] SC 420 as to which see Van Colle at paragraph 79; Swinney v Chief Constable of Northumbria Police [1997] QB 464 as to which see Van Colle at paragraphs 80, 120; and Costello v Chief Constable of Northumbria [1999] ICR 152, as to which see Van Colle at paragraph 120."
Hallett LJ had no doubt the appeal must be dismissed. There were a number of routes to the same result.
First, the basic principle was that where there was a wrong there should be a remedy. Any departure from that principle required strict and cogent justification and regular review. Jones v Kaney [2011] UKSC 13; [2011] 2 AC 398. However, there were cases where it would not be fair just and reasonable to impose a duty and the interests of the public at large might outweigh the interests of the individual allegedly wronged.
Second, the Caparo test applied to all claims in the modern law of negligence. There was no justification in the case law or the textbooks for restricting its application to more difficult areas, such as direct physical harm. The direct physical harm argument was disposed of once and for all in Lord Steyn's speech in Brooks and again in Marc Rich. The Hill principle was designed to prevent defensive policing and better protect the public. It would fundamentally undermine that objective to make the police liable for direct acts but not indirect acts. Whether or not the police should be held liable should not depend on who was responsible for knocking into the Claimant, the officer or the offender. It made no sense to hold the Chief Constable liable in the former case but not the latter.
Thirdly the general principle was that most claims against the police in negligence for their acts or omissions in the course of investigating and suppressing crime and apprehending offenders would fail the third stage of the Caparo test. It would not be fair just and reasonable to impose a duty. This "immunity" would be of little or no practical benefit if it was restricted in the way suggested by the Claimant’s counsel. Arresting criminals very commonly carried some form of risk.
The Hill principle did not impose a blanket "immunity". The authorities and individual cases make that clear.

1. As to the extent of the principle, and guidance on when it may be dis-applied, no judge, as far as I am aware, has attempted a definitive list of possible exceptions. I shall resist the temptation to be the first. Lord Steyn in Brooks when raising the question of what might amount to a case of "outrageous negligence" and fall outside the Hill principle stated in terms that it would be "unwise to try to predict accurately what unusual cases could conceivably arise" (paragraph 34) . Also, Lord Carswell in Van Colle had his doubts about a separate category of "outrageous negligence" and no other judge has adopted it. In principle, therefore, although I can see the sense in exempting cases of outrageous negligence on the basis no one wishes to encourage grossly reckless police operations, I prefer to consider such claims as being on the margins. This is the category into which I assume the decision in Rigby would fit if decided today.
2. Other claims which may not offend the Hill principle include those which do not relate to core functions eg claims based on negligent traffic management decisions (as in Knightley) and claims where police officers have assumed responsibility for a claimant (as in An Informer). I appreciate that practitioners would prefer the courts to go further and provide greater guidance than these broad categories of when it will be fair just and reasonable to impose a duty. But, in my view, a careful analysis of the case law should provide a sufficient degree of certainty.
3. Thus, I am satisfied the three stage Caparo test does apply to the present action. If so, it is a paradigm example of why the courts are loathe to impose a duty towards individual members of the public on the police engaged in their core functions. It would not be fair just and reasonable to impose a duty on police officers doing their best to get a drug dealer off the street safely.

Conclusions on the trial judge's findings

1. That brings me to the Recorder's findings. Had it been necessary, I would have felt obliged to overturn most of the findings for the reasons given by Mr Skelt. The evidence did not justify findings the officers were under a duty to Mrs Robinson even disregarding the Hill principle or that they were negligent.

Indirect harm

1. One finding that was supported by the evidence, however, was the finding that Williams was responsible for the harm. This was clear from the CCTV footage. The claim was, therefore, a claim for indirect harm in that the police officers failed to prevent Williams cause harm to Mrs Robinson. If so, even had Miss Widdett's argument on the law been successful, the claim fell at the first hurdle. It was not fair just and reasonable to impose a duty on these facts. Miss Widdett did not, in truth, strive to persuade us otherwise.

Imposition of duty and Proximity

1. Further, in my view, the claim should have failed at the duty stage. The Recorder was wrong to impose a duty on the officers on the basis they accepted there was a risk to the public in carrying out the arrest and to conclude Mrs Robinson was in a sufficiently proximate relationship to them to justify imposing a duty of care.
2. It is not enough to say that an operation carries with it acknowledged risks and therefore there is a notional duty to any individual passing by. As Mr Skelt observed, a general professional obligation to seek to minimise risks does not equate to some form of legal duty.
3. The Recorder appears to have conflated the presence of the appellant near to the scene with her having "proximity" at law. "Proximity" has a particular meaning in this context far beyond mere presence. It is not enough to find, as the Recorder did, that she was physically close and there was a foreseeable risk to her, therefore she was sufficiently proximate.
4. "Proximity" in the context of a police officer is intended to reflect some kind of relationship between the Appellant and the Respondent above and beyond the duty owed by them to the public in general. The most obvious example would be the assumption of care as in the handling of an informant. There is nothing of that kind here.
5. There were several people within the immediate scene of the arrest. There was a relatively constant stream of pedestrian and road traffic. On the Appellant's analysis, they were all within the scope of the rather general risk posed by Williams trying to escape. The Recorder made no attempt to analyse whether that was a sufficiently close relationship to amount to "proximity" for a case of this kind. Had he done so, in my view he would have reached a different conclusion.

Negligence

1. In any event, I have even greater doubts as to the finding of negligence. This is a classic case of the benefit of hindsight and highlights the dangers of judges sitting in judgment on police operational decisions. The Recorder, who one must assume is not an expert in the arrest and detention of suspects or their behaviour, has criticized the handling of a police operation in a number of ways. To my mind, the evidence did not come close to justifying his criticism.
2. Aware of a risk, DS Willan took particular care. He consulted a senior officer, he called for back up and he waited until the additional two officers were in position to strike. Their position was chosen on the basis the officers did not want to alert Williams to their presence, a sensible precaution one might think. If the two back up officers had got too close, the dealer or his lookout (if there was one as there usually is) would undoubtedly have spotted them.
3. DS Willan could not afford to wait as the Recorder found. He was bound to attempt the arrest or risk losing the suspect, who could have decamped at any moment, and the evidence. The delay of three seconds in the additional two officers reaching the scene is hardly worthy of criticism in these circumstances. Even if it was a mistake and a causative one (an issue not addressed in the court below) mistakes are not necessarily negligent.

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.

1. I hope I have dealt sufficiently with both these grounds in the main body of the judgment. Had the Recorder found in the way that Miss Widdett suggested when drafting them, he would undoubtedly have been in error. However, he did not. He recognised there were a number of possible exceptions to the Hill principle and only considered whether "outrageous negligence" was present here because the parties had addressed him upon it. He did not find that a finding of "outrageous negligence" was the only way in which the principle could be defeated. In the circumstances it is not necessary to consider the two grounds further.

Result

1. For all those reasons, I am satisfied the Hill principle does apply in general to the law of negligence and to the facts of this case. It was not fair just and reasonable to impose a duty on those facts. The findings that a duty existed and that there was a breach are unsustainable. I would dismiss the appeal.

Mr Justice Arnold:

1. I agree that this appeal should be dismissed. Mrs Robinson was an innocent passer-by who was hurt when the police arrested Williams and Williams resisted arrest. She deserves compensation, but it does not necessarily follow that she has a claim in negligence against the police. In my judgment she does not, for two distinct reasons.
2. First, the Recorder was correct to conclude that the police did not owe Mrs Robinson a duty of care, since the circumstances fell within the core principle that the police do not owe a duty of care to victims, witnesses or defendants (let alone bystanders) when investigating and suppressing crime, in particular when arresting suspects: see Brooks v Metropolitan Police Commissioner [2005] UKHL 24, [2005] 1 WLR 1495 at [30] (Lord Steyn) and Van Colle v Chief Constable of the Hertfordshire Police [2009] 1 AC 225 at [73]-[80] (Lord Hope of Craighead), [106]-[108] (Lord Carswell) and [122]-[127] (Lord Brown of Easton-under-Heywood). Counsel for Mrs Robinson argued that the core principle did not apply where the police directly caused physical harm. While this argument receives support from dicta in some of the authorities (notably Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 at 59C (Lord Keith of Kinkel) and An Informer v A Chief Constable [1012] EWCA Civ 197, [2013] QB 579 at [94] (Arden LJ)), it was expressly rejected by Lord Steyn, with whom the other members of the House of Lords agreed, in Brooks at [32]. It is irrelevant to his reasoning that that case concerned psychiatric harm.
3. In both Brooks and Van Colle the House of Lords held that there may be exceptional cases in which the police do owe a duty of care even when investigating and suppressing crime. So far, the clearest example of such a case appears to be Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985. That was undoubtedly a case of suppressing crime: the police were attempting to apprehend a psychopath who was firing shots from the building in which he was holed up. Although Lord Steyn in Brooks quoted at [19] the passage of Lord Keith's speech in Hill in which Lord Keith referred approvingly to Rigby, it is unclear whether Lord Steyn regarded Rigby as an example of the "cases of outrageous negligence by the police, unprotected by specific torts, which could fall beyond the reach of the Hill principle" to which he referred at [34]. Nothing which Taylor J said in his judgment in Rigby suggests, however, that he regarded the case as one of "outrageous" negligence. Lord Hope in Van Colle at [79] treated Rigby as an example of "cases where operational decisions taken by the police can give rise to civil liability without compromising the public interest in the investigation and suppression of crime". I am respectfully unconvinced by that explanation, which seems to me to be inconsistent with Lord Hope's analysis of the public policy reasons for holding that no duty of care exists when the police are investigating and suppressing crime. In my view, the best explanation of Rigby may be that it is an assumption of responsibility case. As Lord Brown explained in Van Colle at [120]-[121], the core principle which excludes a duty of care does not apply where there is an assumption of responsibility by the police. In Rigby, the chief inspector had realised that firing a CS canister into the building would create a risk of fire, and therefore had arranged for a fire engine to be present. Having assumed the responsibility of making arrangements to combat any resulting fire at the premises in that way, he was negligent in failing to ensure that the fire engine was still in attendance at the time he gave the order to fire the CS canister. In the present case, however, it is not suggested that the police assumed any responsibility to Mrs Robinson. Nor is there any other reason to regard the case as an exception to the general rule.
4. The second reason why Mrs Robinson has no claim is that, even if the police did owe Mrs Robinson a duty of care, the conduct of the arresting officers did not fall below the standard to be expected of reasonably competent police officers. In my judgment, the Recorder made two errors in concluding that, if there was a duty of care, it had been breached. First, he did not direct himself by reference to the standard of reasonably competent police officers. Secondly and in any event, I do not consider that his findings justified a conclusion of negligence. He found that the officers could have waited and selected a safer opportunity to arrest Williams, but he did not hold that their failure to do so was negligent in itself. Rather, he held that, in those circumstances, more careful planning and elimination of risk was called for. He did not find that there was anything negligent about the planning of the arrest, however. Thus it seems that it was the implementation of the plan that he considered to have been negligent. Upon analysis, however, his only real criticism of the implementation was that the second pair of officers was three seconds away at the moment when the first pair made the arrest. I am unable to understand how that could amount to negligence. The second pair had perfectly good reasons for holding off slightly, among which were to enable them to cut off Williams' escape route if he ran away. Even if they did not, as Hallett LJ has pointed out, they should not be second-guessed with the benefit of 20/20 hindsight.

Lord Justice Sullivan:

1. I too agree for the reasons given by Hallett LJ that the appeal must be dismissed

 
JUDGMENT:-
Her Honour Judge Coe