Waters v Comr of Police of the Metropolis

A chief officer of police may owe police officers a duty analogous to an employer’s duty to protect employees from foreseeable physical or psychiatric injury caused by workplace harassment or victimisation. Liability may arise where those responsible know, or ought to know, of the conduct and fail to take reasonable protective steps.

The policy restrictions governing negligence claims about the investigation and suppression of crime do not exclude that duty. An investigation complaint alone remains insufficient. On a strike-out application, the court may consider whether a succession of acts could cumulatively have caused the alleged injury.

A police officer alleged that, after complaining that an off-duty fellow officer had sexually assaulted her, she suffered prolonged harassment, victimisation, ostracism and adverse treatment by other officers. She claimed that the Commissioner personally failed to protect her and was vicariously liable for torts committed by officers under his direction.

The pleading was struck out under Order 18 r.19 of the Rules of the Supreme Court. Wright J dismissed an appeal, and the Court of Appeal dismissed a further appeal in [1997] I.C.R. 1073. The House considered the proposed amended pleading on the assumption that its allegations were true.

The central issue was whether the pleaded facts could disclose negligence, misfeasance in public office, intimidation or another actionable wrong, or whether public policy made it plain and obvious that the action could not succeed.

1. Appeal allowed unanimously. Lord Slynn of Hadley delivered the leading speech. Lord Clyde and Lord Millett agreed with his reasons; Lord Jauncey agreed that the claim should proceed, subject to his observations about investigation; and Lord Hutton agreed while adding reasons concerning negligence. The action was not plainly and obviously bound to fail and should not have been struck out.

2. Per Lord Slynn and Lord Hutton, the relationship between a chief officer and a police constable is sufficiently analogous to employment for an employer-like duty of care to be arguable. An employer may be liable where employees’ workplace conduct foreseeably risks physical or psychiatric harm to a fellow employee and the employer, knowing or having reason to know of it, fails to take reasonable preventive or protective steps. The employer is not liable for every instance of unpleasantness or bullying.

3. The allegations permitted the inference that retaliation against an officer who persisted in a sexual-assault complaint, and resulting psychiatric harm, could become foreseeable to senior officers. Causation could not be rejected by isolating each incident. Per Lord Slynn and Lord Hutton, the cumulative effect of a succession of acts or decisions could have caused the alleged injury.

4. The public-policy rules in Hill and Calveley did not preclude the wider claim. Those authorities concerned negligence in investigating and suppressing crime and lacked the relevant quasi-employment relationship. Per Lord Hutton, policy had to be assessed in the round. The burden imposed on police resources was insufficient at the pleading stage to outweigh the public interests in remedying a serious wrong and exposing any institutional failure to protect officers.

5. Per Lord Slynn, a complaint confined to failure to investigate the alleged assault would not be viable. Lord Jauncey likewise considered that such facts could serve only as narrative because public policy precluded negligence liability arising from the manner in which police investigated an alleged crime, even where both complainant and suspect were police officers.

6. The existence of police complaint and disciplinary procedures did not itself exclude a negligence action. Particular caution was required before striking out an assumed-fact claim in a developing area of negligence involving a public authority.

7. The pleaded allegation of malice prevented the misfeasance claim from being struck out merely for want of malice. Although the alternative claims in vicarious liability and intimidation faced substantial difficulties, their facts overlapped with the negligence claim and they were permitted to proceed. The House expressed no view on the claim’s ultimate prospects.

1. House of Lords: Allowed the officer’s appeal unanimously and held that the proposed amended claim should not be struck out.
2. Court of Appeal: Dismissed the appeal on 3 July 1997, reported as [1997] I.C.R. 1073, principally because it considered Hill and Calveley to preclude a duty of care on public-policy grounds.
3. High Court: Wright J dismissed the appeal from the master on 7 September 1995.
4. Master: Master Prebble struck out the writ and statement of claim on 22 November 1994.