Ancell v McDermott

A police officer who has neither created a highway danger nor assumed responsibility for it does not ordinarily owe an individual road user a duty to warn of, or protect them from, that danger merely because it is observed during ordinary police duties. A general public duty to protect life and property does not itself create a private-law duty of care owed to individual members of the public.

Foreseeability is insufficient. A novel duty must be assessed by reference to proximity, whether it is fair, just and reasonable to impose it, and established categories of liability. Liability for failing to prevent harm caused by another is exceptional and depends on a special relationship. The potentially unlimited scope and operational burden of the proposed police duty also told against its recognition.

Diesel fuel was allegedly spilled on a public road after a motorist drove over equipment which had fallen from an articulated vehicle. Police officers from two forces noticed the fuel while performing ordinary duties but did not warn traffic, control traffic, or remain at the site. Soon afterwards, a car allegedly skidded on the fuel and collided with an oncoming lorry. Its driver died and the other occupants were injured.

The claimants sued, among others, the two Chief Constables for negligence and breach of duty. Garland J dismissed applications under Order 18, rule 19 to strike out the claims. The Chief Constables appealed. The central issue was whether, on the pleaded facts assumed to be true, police officers owed road users a duty to protect them from or warn them of a highway hazard created by others.

1. Appeal allowed unanimously. Beldam LJ held, with Sir John Megaw and Nourse LJJ agreeing, that the pleaded facts could not establish a duty of care owed by the police officers to the claimants. The order dismissing the strike-out applications was set aside and the action against the two Chief Constables was struck out.
2. The issue was one of law on the facts pleaded and assumed for the application. It was not necessary to await evidence about the precise seriousness of the particular spillage. The relevant question was whether a police constable could owe the alleged duty in circumstances of that general kind.
3. Public duties of police officers did not answer that question. The references to police duties in Haynes v Harwood and Reg v Dytham concerned duties owed in the public interest. They did not establish a private duty of care to an individual injured by a failure to perform those duties.
4. Beldam LJ applied the reasoning in Hill v The Chief Constable of West Yorkshire [1989] 1 A.C. 53. Foreseeability alone did not create proximity. A duty to control another person’s conduct so as to prevent harm to strangers was exceptional and depended on a special relationship. The officers had no such close and direct relationship with road users, and the case was not materially distinguishable in principle from the police-investigation cases.
5. The modern approach to a novel duty was incremental and by analogy with recognised categories. Although the danger was foreseeable, it was neither sufficiently proximate nor fair, just and reasonable to impose the proposed duty. It would expose police forces to liability of almost unlimited scope and divert resources from ordinary police functions.
6. Sir John Megaw added that there was no valid reason to impose a more extensive private duty in highway safety, where the primary public responsibility lay with authorities other than the police, than in criminal investigation, where Hill denied such a duty.

• Court of Appeal (Civil Division) Allowed the Chief Constables’ appeal, set aside Garland J’s order, and struck out the action against them.
• High Court of Justice, Queen’s Bench Division Garland J dismissed the Chief Constables’ applications under Order 18, rule 19 to strike out the claims. No citation for that decision is stated in the judgment.