Mullaney v Chief Constable of West Midlands Police

A chief constable owes police officers a personal and non-delegable duty, analogous to an employer’s duty, to take reasonable care not to expose them to unnecessary risk of injury. The duty includes devising and operating a reasonably safe system of work. Its scope remains subject to public policy and must be assessed flexibly in light of the demands, resources and urgency of police operations.

Public policy does not exclude liability where a small, pre-planned operation has adequate resources and an officer’s central dereliction defeats an established safety system. An individual officer may also assume responsibility to colleagues by accepting a specific role involving the monitoring of calls for assistance.

A probationary police constable was seriously injured while attempting an arrest during a planned operation. Although the arrest was unlawful, he reasonably believed that it was his duty to make it. Four calls for assistance on the operation’s dedicated radio channel went unanswered because the officer assigned to monitor the channel had left his post.

Mr Recorder Mitting QC, sitting as a Deputy Judge of the High Court, entered judgment for the claimant and directed that damages be assessed. He found both a breach of the Chief Constable’s duty as quasi-employer and a breach by a fellow officer for which the Chief Constable was vicariously liable. He rejected contributory negligence and awarded indemnity costs.

The Chief Constable appealed on duty, breach, causation, contributory negligence and costs.

1. Appeal dismissed unanimously. Clarke LJ delivered the leading judgment. Potter LJ agreed and gave additional reasons. Bodey J agreed with both judgments.
2. A chief constable should be treated as owing police officers the duties which an employer owes employees. Subject to relevant public-policy considerations, this is a personal and non-delegable duty to take reasonable care to devise and operate a safe system of work. The system devised for the operation was safe because it provided a dedicated radio channel and officers responsible for monitoring calls. Its operation was unsafe because nobody was listening as instructed.
3. The failure was central rather than casual or collateral. The monitoring officer had been entrusted with an essential part of the safety system but abandoned his post. Since an employer cannot avoid the non-delegable duty by entrusting performance to another person, the resulting failure was legally the Chief Constable’s breach.
4. Public policy did not exclude the duty. The operation was small, planned and adequately staffed. No urgent operational judgment or allocation of scarce resources was involved. Imposing liability would support, rather than impair, proper implementation of elementary precautions for officers’ safety. Potter LJ emphasised that the standard remains reasonable care in all the circumstances and must be applied flexibly to the emergencies, limited resources and inherent dangers of policing.
5. Alternatively, the monitoring officer had assumed responsibility to team members, including the claimant. His assigned role required him to listen and respond to calls from either location. Officers in the field relied upon someone monitoring the dedicated channel. His complete failure to perform that role breached a personal duty of care, for which the Chief Constable was vicariously liable.
6. The trial judge was entitled to find that a response to either of the first two calls would probably have prevented the later repeated kicking to the claimant’s head. The claimant’s decision to enter alone was a misjudgment, but not contributory negligence. He was inexperienced, reasonably expected radio backup and had no reason to anticipate extreme violence. Continuing the arrest in the heat of the struggle was likewise not negligent.
7. The indemnity-costs order stood. The defence had relied upon deliberately untruthful evidence intended to conceal the failure to monitor the radio channel. The appeal was dismissed with costs, subject to detailed assessment.

1. Court of Appeal (Civil Division): The Chief Constable’s appeals on liability and indemnity costs were dismissed unanimously: [2001] EWCA Civ 700.
2. High Court: Mr Recorder Mitting QC, sitting as a Deputy Judge of the High Court, entered judgment for the claimant, directed assessment of damages and awarded indemnity costs. No citation is stated.