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The Line of Duty: Police and the Duty of Care
- Jun 2, 2023
- Latest News
When do the police owe a duty of care in the tort of negligence?
For many years, cases involving alleged duties of care on the part of the police, were decided, or at least appeared to be decided, on policy grounds. In Hill v Chief Constable of West Yorkshire Police  AC 53 (“Hill”) the House of Lords held that the police were immune from actions in negligence in respect of their activities in the investigation and suppression of crime, because such a duty might lead to defensive policing and an unwelcome diversion of resources. Later cases such as Van Colle v Chief Constable of Hertfordshire  UKHL 50 were also decided on policy grounds.
However, in Michael v Chief Constable of South Wales  UKSC 2 (“Michael”) and even more explicitly in Robinson v Chief Constable of West Yorkshire  UKSC 4 (“Robinson”), the majority of the Supreme Court held that the true basis of these decisions was not policy at all, but rather a more ancient but sometimes overlooked common law rule against liability for omissions. In particular, at common law a person does not generally owe a duty of care to act to protect another person from harm or to confer a benefit on that person. This rule applies equally to public authorities as it does to private citizens. Thus, where the police fail to adequately investigate a crime or protect someone from it, they will not ordinarily owe a duty of care, because their failing is one of omission.
Distinguishing Between Acts and Omissions
Care needs to be taken in analysing what constitutes an act or omission for these purposes. Many negligence claims, where a duty of care could not sensibly be disputed, involve omissions. In Stovin v Wise  AC 923 (“Stovin”) , Lord Hoffmann explained:
“To hold the defendant liable for an act, rather than an omission, it is therefore necessary to be able to say, according to common sense principles of causation, that the damage was caused by something which the defendant did. If I am driving at 50 miles an hour and fail to apply the brakes, the motorist with whom I collide can plausibly say that the damage was caused by my driving into him at 50 miles an hour”
On the other side of the equation, it does not follow simply because the defendant has undertaken some acts that the case is not in truth one of omission. The facts of Stovin itself illustrate this. The claim was that a local authority should have exercised its statutory powers to remove a bank on private land adjacent to the highway because it impaired visibility for motorists. The local authority had taken some positive action, including surveying the bank, deciding to remove it and contacting the landowner. These acts did not convert the case into one of commission because, Lord Hoffmann explained, the cause of the accident was not anything that the defendant did, but the fact that it had failed to improve visibility at the junction: i.e. an omission.
In N v Poole Borough Council  UKSC 25 (“Poole”), Lord Reed preferred to draw a distinction between causing harm (“making things worse”) and failing to confer a benefit (“not making things better), than the more traditional distinction between acts and omissions, in part because he considered that to better convey the rationale of the rule and in part because (as much conflicting case law testifies) the distinction between acts and omissions seemed to be found difficult to apply.
Exceptions to the Omissions Rule
Where the case is one of omission (or not making things better), there remains the possibility of a duty of care arising where a recognised common law exception to the “no liability for omissions” rule applies. In Robinson and Poole the Supreme Court gave examples of situations where a duty to protect another person from harm caused by third party might arise. These include where the defendant itself created the source of danger, or assumed a responsibility to protect the claimant from harm, or had a special level of control over the source of danger, or had a status which created an obligation to protect the claimant from that danger.
It needs to be stated straight away that the fact that the defendant is a police force (or other public authority) with a power or even a public law duty to protect the claimant from the danger does not by itself mean that it has a status which creates a common law duty of care to do so. That is clear from the decisions of the Supreme Court in Gorringe, Michael, Robinson and Poole themselves and was stated explicitly in Tindall v Chief Constable of Thames Valley Police  EWCA Civ 25 (“Tindall”). As Stuart-Smith LJ said in Tindall, such an outcome would run contrary to the established principles set out in the authorities. Those principles include that public authorities are subject to the same law of tort as private individuals. An example of the status exception would be the duty of care owed by an occupier.
As for the “control” exception, the classic example is Home Office v Dorset Yacht  AC 1004 (“Dorset Yacht”), in which prison officers brought borstal trainees who were in their custody and under their control on to an island and into close proximity with the boats which those trainees subsequently damaged during an escape attempt. The officers were held to owe a duty of care to the boat owners. The key point is that the third parties who caused the damage were under the direct control of the prison officers. However, the case could equally, and perhaps better, be analysed as a “creation of danger” case, because the prison officers brought the young offenders into close proximity with the boat owners in the first place and then failed to supervise them.
The mere performance, or careless attempted performance, of their duties by police officers (e.g.; undertaking an investigation of a crime or answering a 999 call) does not amount to an assumption of responsibility. That much is clear from the decisions in Hill and Michael. Some additional ingredient is required.
Two recent examples
Two recent decisions involving police forces, one from the Court of Appeal in England and Wales and one from the Court of Appeal in Northern Ireland, have applied these principles, their outcomes falling on opposite sides of the line.
In Tindall, the pleaded facts were that a driver, K, skidded on a patch of black ice. He called 999 for assistance and whilst waiting the arrival of the emergency services made attempts to warn approaching traffic. The police arrived and put up a warning sign. Once Mr K was taken to hospital in an ambulance, the police cleared the road of debris, removed their warning sign and left the scene. Minutes later another car lost control on the black ice. Its driver collided with an oncoming vehicle driven by Mr Tindall. Both drivers were killed. Mr Tindall’s wife brought a claim against the police on her own behalf and administrator of his estate for negligence, alleging that the officers who had attended the scene had owed a duty to make the road safe. She alleged that by removing Mr K and/or by erecting and then removing the warning sign, the police had created or increased the danger to road users or had assumed responsibility to them.
The English and Welsh Court of Appeal held that the claim should be struck out. The mere attendance of the police at a scene does not give rise to a duty of care. Mr K had made his own decision to leave the scene, based on his own private assumption that the police would behave in a certain way, but the police had done nothing negligent to encourage that decision and had not undertaken to him that they would do anything themselves. The failure to keep a sign in place, which would not have been there at all had the police not put it up in the first place, was a failure to confer a benefit, rather than an intervention which made matters worse. The “control” exception did not apply because the officers had come across a potential danger for the existence of which they had not in any way been responsible. As for the argument that there was an assumption of responsibility by the police, the mere fact that the police had powers which would have enabled them to make the road safe was not enough to amount to an assumption of responsibility. There was nothing to differentiate the relationship of the police with Mr Tindall from their relationship with any other road user. What had occurred was a transient and ineffectual intervention, which left the road no more dangerous than it would have been had they not intervened at all.
In Magill v Chief Constable of the Police Service of Northern Ireland  NICA 49, the plaintiff was a marcher in an Orange Order parade whose marching, he alleged in an Amended PoC, had been stopped by the police, leaving the marchers trapped and subject to an attack by missile throwing protestors. He was struck on the head. The Court of Appeal in Northern Ireland held that although “finely balanced”, his case “by a narrow margin” got over the threshold and should be allowed to proceed to trial on the basis that it was arguable that the police had assumed a responsibility for the plaintiff’s safety through their alleged positive actions. Although expressed in assumption of responsibility terms, the reasoning of court was that that the police, through a combination of careless acts and omissions, had made a material contribution to the plaintiff’s injury. Another way of looking at the case, though not expressly put this way by the Court of Appeal, would be that the police by their actions of forcing the marchers to stop had added to or created the dangers faced by the marchers by stopping them from escaping the attack. The Court of Appeal was not impressed by the way in which the case was originally pleaded, which involved a series of allegations of omissions concerning matters such as adequacy of the number of deployed officers and a failure to prevent the attacked, stating that it would have struck that case out.
Some older examples
Some older authorities, also illustrate the distinction. In Rigby v Chief Constable of Northamptonshire  1 WLR 1242 the police were found liable for negligently firing a cs gas cannister into the plaintiff’s shop, setting it on fire, in the course of an attempt to force out a dangerous psychopath who had broken into it. In Knightly v Johns  1 WLR 349 a senior police officer negligently directed a junior constable to ride against the flow of traffic to close a tunnel after a road traffic accident, leading to a collision with another vehicle. In both cases the police had created the danger.
In Ancell v McDermott  4 All ER 355, a case with some similarity to Tindall, the Court of Appeal held that the police had not owed a duty to make safe a highway on which diesel had leaked from a third party’s vehicle. The case was decided partly on policy reasons, which would not be an accepted line of reasoning today, namely that the imposition of a duty to protect road users from hazards caused by others would be so extensive as to divert the police from the proper functions of detecting and preventing crime. However, the outcome of the case withstands and is consistent with an acts/omissions analysis: the police had not done anything to assume a duty of care to the claimant’s husband, who tragically skidded on the oil and was killed, nor had they created or added to the danger, which existed independently of anything they had done or not done.
In the Scottish case of Gibson v Orr (1999) SC 420, a bridge collapsed after heavy rainfall. The police assumed control and closed entry to the bridge on one side, but not the other. They left the scene without putting in place any warning sign on the open side of the bridge. Shortly afterwards, a car entered the bridge at that side and fell into the river, killing all but one occupant. The Outer house of the Court of Sessions held the police liable on the basis that the police were not engaged in their “core duty” of preventing crime and had assumed a responsibility to road users. This involved “policy” reasoning. In Tindall, Stuart-Smith LJ held that the decision was inconsistent with the weight of authority and did not represent the law of England. What the police did was a failure to confer a benefit (in the form of warning lights or otherwise) upon road users who might drive along that stretch of the road. As in Tindall, theirs was an ineffectual intervention, just as if they had failed to respond at all, or had got lost, or had hit a tree on the way.
Is there an on-going role for policy?
In his article in the Cambridge Law Journal, “Maintaining the elegant façade of the acts-omission distinction”  Jonathan Morgan convincingly argues that policy informs why some relationships readily give rise to an assumed duty of care e.g., doctors to their patients, whereas others do not: e.g., police to victims of crime. His point is not that there should necessarily be a duty in the latter type of case, but that the courts should be more ready to openly address policy factors which may more satisfactorily explain why a duty of care is held to be assumed in some cases, but not in others.
A similar point was made by Lord Hughes in his minority judgment (although not dissenting in the result) in Robinson. He expressed the view that an acts/omissions distinction does not satisfactorily explain all of the case law, including Brooks v Commissioner of Police of the Metropolis  1 WLR 1495, a decision of the House of Lords which remains good law. That case did involve positive action by the police, in the way that they had treated the claimant as a witness to crime, causing him psychiatric injury, yet a duty of care was not owed, essentially for policy reasons which had been given in Hill.
However, where the law is established, policy has already been taken into account in arriving at the relevant conclusion and hence it is no ordinarily necessary for the court to reconsider it. This point was made by Lord Reed in Robinson. 
There is, discernible in the case law, recognition of an underlying distinction between the nature of the work undertaken by say the police, firefighters and social workers, and others such as doctors and educators, in that the former perform public functions of a nature which do not exist in the private sphere. For example, the police have powers to detain people and close public highways. Social workers may compulsorily remove children from their families. They exercise such powers for the benefit of society as a whole and not just an individual. Private citizens do not have such powers or such wider obligations. By contrast, it is possible to see a doctor privately or attend a private school and since a duty of care can clearly exist in such cases, it is harder to argue that it should not exist in comparable cases where the education or health service is provided by the state. In Poole, which concerned the question of whether social workers exercising child protection functions owed a duty of care to the children in question, Lord Reed referred to the fact that the council’s investigating and monitoring of the children’s position “did not involve the provision of a service to them on which they or their mother could reasonably be expected to rely”. In other words, the “service” in question was not akin to the sort of relationship as that which can exist between a patient and their doctor, which could just as easily be governed by contract as by tort.
The same underlying distinction can be discerned from Lord Toulson’s judgment in Michael, when he said: “It does not follow from the setting up of a protective system from public resources that if it fails to achieve its purpose, through organisational defects or fault on the part of an individual, the public at large should bear the additional burden of compensating a victim for harm caused by the actions of a third party for whose behaviour the state is not responsible. To impose such a burden would be contrary to the ordinary principles of the common law.”
The Supreme Court in Robinson was unanimous in seeing an on-going need for the weighing of policy consideration in genuinely novel cases where the existing cases and the principles underlying them do not yield the answer. An example is James-Bowen v Commissioner of Police of the Metropolis  UKSC 40 (“James-Bowen”), where the Supreme Court held that it would not be fair, just or reasonable to impose a duty of care on the Commissioner to defend litigation against her in a way which protected the economic and reputational interests of police officers for whom she was vicariously liable.
It seems that difficulties in deciding when there has been an assumption of responsibility giving rise to a duty of care continue to arise in some contexts, notwithstanding the apparently authoritative statements of the law given by Lord Reed in Robinson and Poole.
In HXA v Surrey County Council  EWCA Civ 1196 (“HXA”) the Court of Appeal considered two claims involving social workers. In one, the claimant alleged that by resolving to seek legal advice as to whether to bring care proceedings but failing to do so, and by resolving to undertake “keeping safe” work but failing to do so, social workers had assumed a duty of care to protect her from abuse within her family. In the other, the claimant alleged that social workers had come under such a duty by providing him with respite care on a number of occasions. At first blush, it is not obvious how either of these cases involves social workers either making a situation worse than it would have been had they not intervened at all, or providing a “service” distinguishable from that considered by the Supreme Court, and held not to give rise to a duty of care, in the Poole case. However, the Court of Appeal, reversing decisions of the lower courts that the claims should be struck out, held that a full investigation of the facts at trial was necessary to ascertain whether a duty of care had been assumed.
It is worthy of note that the Court of Appeal did not mention Tindall at all in their judgment. Much of the court’s analysis was specific to the statutory duties of local authorities under the Children Act 1989 (“the 1989 Act”). Given that the House of Lords held that child protection legislation does not give rise to a cause of action for breach of statutory duty (see X v Bedfordshire County Council  2 AC 633 (“X v Bedfordshire”)), it is questionable whether the 1989 Act could in fact give rise to a tortious duty of care. However, regardless of the correctness or otherwise of the Court of Appeal’s approach, there is no reason to consider that its decision affects the general position of the police, with the possible exception of the role played by police officers alongside their social work colleagues in the field of child protection, given that police officers also have duties under the 1989 Act.
At least in so far as concerns the liability of the police, there is now a clear and settled body of case law which points to when a duty of care will or will not arise. The Supreme Court has made clear in Robinson that where the existence or non-existence of a duty of care has been established, it is unnecessary and inappropriate to reconsider the matter, save exceptionally where the Supreme Court is invited to depart from an established line of authority.
Occasionally a truly novel case may arise, such as was the case in James-Bowen, where an assessment of what is just and reasonable, having regard to underlying policy reasons, may be necessary. This is likely to be rare.
One area of doubt, which arises from the Court of Appeal’s recent decision in HXA, is whether police officers engaged in child protection duties might potentially be regarded as having assumed a duty of care to protect a victim from harm caused by a third party. In X v Bedfordshire, one reason given by Lord Browne-Wilkinson for not holding social workers liable in negligence was that it would be unequal and unfair if a duty lay against social workers but not the police. If it transpires social workers can be sued, might the reverse hold true?
The Supreme Court has granted permission to the local authorities to appeal in HXA and it is to be hoped that their decision will further clarify this difficult area of law once and for all.
Andrew Warnock KC, along with Ella Davis, represented the Chief Constable in Tindall v Chief Constable of Thames Valley Police and, along with Lisa Dobie, the Commissioner in James-Bowen v Commissioner of Police of the Metropolis.
 C.L.J. 2022, 81(2), 245-248 Negligence, Road traffic
 Corpus Christi College, Cambridge
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Andrew Warnock KC