Vellino v Chief Constable of the Greater Manchester Police

A person injured while committing a serious criminal offence cannot recover in tort where the facts founding the claim are inextricably linked with that offence. It is insufficient that the crime merely provided the occasion for the defendant’s tort.

The principle is one of public policy. Where it applies, the defendant’s conduct and the relative blameworthiness of the parties do not permit apportionment. A common law crime which creates no tortious liability falls outside the Law Reform (Contributory Negligence) Act 1945.

Accordingly, police officers owe an arrested person no duty to prevent injury sustained in a foreseeable attempt to escape from lawful custody.

The claimant was lawfully arrested in his second-floor flat. The arresting officers knew that he had previously evaded arrest by jumping or dropping from its windows. The trial judge found that two officers were present when the claimant jumped from a bedroom window and could have prevented him from doing so. The claimant suffered severe brain damage and tetraplegia.

Elias J held that the officers would have been negligent if they owed the alleged duty. He nevertheless dismissed the claim because escape from lawful custody was a serious common law crime and the officers owed the claimant no duty to protect him from injury sustained during his escape. His contingent assessment attributed two thirds of the responsibility to the claimant.

The claimant appealed. The central questions were whether the police owed the alleged duty and whether the illegality principle barred recovery.

1. Appeal dismissed by a majority. Schiemann LJ and Sir Murray Stuart-Smith held that the claimant could not recover for injuries sustained while escaping from lawful custody. Sedley LJ dissented and would have awarded one third of the assessed damages.

2. Per Sir Murray Stuart-Smith, the illegality principle applies where a claim is founded upon the claimant’s own criminal or immoral act and the facts giving rise to the claim are inextricably linked with that activity. Criminal conduct which merely provides the occasion for the defendant’s tort is insufficient. Escape from lawful custody was integral to this claim and was sufficiently serious to engage the principle.

3. The principle rests on public policy rather than the defendant’s interests. Once it applies, the cause of action does not arise. The defendant’s conduct and any comparison between the parties’ wrongdoing are therefore irrelevant. A crime punishable by imprisonment will generally possess the necessary seriousness, although the circumstances remain important.

4. The Law Reform (Contributory Negligence) Act 1945 did not replace the illegality principle in this case. Escape was a common law crime which neither constituted a breach of statutory duty nor otherwise created liability in tort. National Coal Board v England was distinguishable because it concerned statutory safety duties capable of constituting tortious fault.

5. Per Schiemann LJ, arrest alone does not create every custodial duty. A duty may arise from detention because detention prevents a person from obtaining necessities or avoiding danger. An arrested person who breaks away, commits a crime and leaves the officer’s immediate control occupies a different position. The officers consequently owed no duty to bar the claimant’s progress through the window or to protect him from injury during his escape.

6. Sedley LJ considered that officers owe a prisoner a duty not to provide both a temptation and an opportunity to escape where they know that escape presents a risk of real harm. He regarded illegality as no absolute bar to compensation for personal injury and would have applied contributory negligence. That view did not command a majority.

1. Court of Appeal: The appeal was dismissed by a majority. The court affirmed Elias J’s dismissal of the claim and refused permission to appeal to the House of Lords.
2. High Court: Elias J held that the police owed no duty to protect the claimant from injury sustained during a foreseeable attempt to escape from lawful custody. The claim was dismissed. No citation is stated in the judgment.