Robinson v Chief Constable of West Yorkshire Police

Police officers have no general immunity from negligence liability. They owe the ordinary duty to avoid causing reasonably foreseeable personal injury by their positive acts, unless legislation or the common law provides otherwise.

A duty question within an established category is resolved by precedent. The foreseeability, proximity and fairness considerations associated with Caparo do not constitute a universal test to be applied afresh in every case. Novel duties develop incrementally and by analogy.

The common law ordinarily imposes no duty to prevent harm caused by third parties, absent an assumption of responsibility, creation of the danger or another recognised exception. Operational policing requires only care reasonable in the circumstances. A third party’s act does not break causation where it is the very danger against which the duty required protection.

A 76-year-old pedestrian was knocked down and injured when two police officers attempted to arrest a suspected drug dealer on a moderately busy shopping street. The suspect resisted, and the resulting struggle collided with her.

The Recorder found that the officers had acted negligently but dismissed the personal injury claim because he considered the police immune from suit. The Court of Appeal, in [2014] EWCA Civ 15, held that no duty of care was owed and that, in any event, the Recorder’s finding of negligence should be overturned.

The central issues before the Supreme Court were whether duty depended on a universal Caparo test; whether the police enjoyed a general protection from negligence claims arising from crime-control functions; whether the injury resulted from a positive act or an omission; and whether duty, breach and causation were established.

1. Disposition. The appeal was allowed unanimously. Lord Reed, with whom Lady Hale and Lord Hodge agreed, held that the Chief Constable was liable in damages. The case was remitted for assessment of damages. Lord Mance and Lord Hughes agreed in the result.

2. Approach to duties of care. The supposed universal test derived from Caparo Industries plc v Dickman [1990] 2 AC 605 was mistaken. Established categories of duty are governed by precedent and should not be reconsidered by asking afresh whether liability is fair, just and reasonable. Where the situation is genuinely novel, the law develops incrementally and by analogy with established authority. Considerations of fairness and legal coherence then inform the court’s judgment.

3. Public authorities and the police. Public authorities ordinarily bear the same tortious liabilities as private persons. A positive act performed during a statutory function remains subject to ordinary negligence principles unless the statute, properly construed, excludes liability. The police therefore have no general immunity for conduct undertaken while investigating or preventing crime. Hill v Chief Constable of West Yorkshire [1989] AC 53 concerned the absence of a duty to protect potential victims from a criminal and did not establish blanket immunity. Conversely, the police ordinarily owe no duty to prevent harm caused by third parties where they neither created the danger nor assumed responsibility for the individual’s safety.

4. Duty and breach. This was a case of positive conduct. The arrest initiated the struggle which injured the pedestrian. Resistance was actually foreseen, and injury to a nearby, physically vulnerable pedestrian was reasonably foreseeable. The officers accordingly owed pedestrians in the immediate vicinity a duty of reasonable care. Operational policing must not be judged by unrealistically demanding standards, especially where decisions are made under pressure. Nevertheless, the Recorder was entitled to find negligence because the arresting officer failed to notice the claimant within a yard of the suspect, despite accepting that he would have delayed the arrest had he seen someone in danger.

5. Causation. The suspect’s resistance did not break the causal chain. His attempt to escape was the very event which made the arrest dangerous and against which reasonable care was required. Lord Mance agreed that direct and foreseeable physical injury caused by positive police conduct should be recognised as an established area of liability, while cautioning that policy may still shape duties at the margins. Lord Hughes agreed that positive negligent conduct causing physical injury can attract liability, but placed greater emphasis on the continuing policy limits governing duties towards victims, witnesses and suspects.

1. United Kingdom Supreme Court: In Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, unanimously allowed the appeal, held the Chief Constable liable in damages and remitted the case for assessment of damages.
2. Court of Appeal: In [2014] EWCA Civ 15, held that no duty of care was owed and that, even if a duty existed, the Recorder’s finding of negligence should be overturned.
3. Recorder: Found that the officers had acted negligently but dismissed the claim on the basis that the police were immune from suit.