Essex Police v Transport Arendonk BVBA

A police authority may owe a private law duty of care where its conduct creates or materially increases a danger to property, or where an assumption of responsibility or another recognised exception applies. Whether conduct amounts to an act causing harm or an omission failing to confer a benefit may depend on the facts and cannot always be resolved at strike-out stage. Where the authorities do not clearly preclude a duty, and the pleaded facts arguably support a duty, causation, assumption of responsibility or breach, the claim should ordinarily proceed to trial. A statutory right owed to an arrested person does not itself give the property owner a private law cause of action.

The claimant appealed against the dismissal of its application to strike out the defendant’s negligence and breach of statutory duty claim. The defendant’s lorry was left unattended in a remote lay-by after its driver was arrested following a collision and a positive breath test. The police took the lorry keys, prevented or failed to facilitate contact with the operator, and did not return to the lorry until the following morning. The defendant alleged that the police had assumed responsibility for the lorry and its cargo, or had created or materially increased the risk of theft.

The central issue was whether the pleaded facts gave the defendant reasonable prospects of establishing a police duty of care, despite the general principles concerning omissions and harm caused by third parties.

1. The appeal was dismissed. The Recorder had been entitled to conclude that the negligence claim should not be struck out.
2. The common law develops incrementally by analogy with established authority. Previous decisions are not to be read as if they were statutory provisions. Unless authority clearly precludes a duty of care, the possibility that an incremental development or application of ordinary negligence principles may establish a duty cannot be excluded at strike-out stage.
3. The ordinary rule is that a person is not generally liable for loss caused by a third party. Under the Dorset Yacht exception, liability may arise where the defendant controls the third party and the claimant belongs to a limited class exposed to a particular risk different in incidence from the general risk to the public. A further exception arises where the defendant assumes responsibility for the claimant’s safety, with reliance where required by the applicable principles.
4. The distinction between causing harm and failing to confer a benefit, reflected in Robinson v The Chief Constable of West Yorkshire Police [2018] UKSC 736 and N v Poole Borough Council [2019] UKSC 25, can be difficult to apply in borderline cases. The pleaded facts involved both an omission and potentially positive acts which prevented others from securing the lorry. It was therefore arguable that the police had created or materially increased the danger.
5. The facts also arguably raised assumption of responsibility and other recognised exceptions. Whether the police had assumed responsibility, whether their conduct caused the loss, and whether any duty was breached required findings of fact. Those matters were unsuitable for determination on a strike-out application.
6. The breach of statutory duty claim was hopeless. The duty under section 56 of the Police and Criminal Evidence Act 1984 was owed to the arrested driver, not to the defendant. That did not preclude an independent private law duty, on appropriate facts, to inform the owner or permit the driver to contact the employer.

• High Court (Queen’s Bench Division): Essex Police v Transport Arendonk BVBA [2020] EWHC 212 (QB) — appeal dismissed; the Recorder’s refusal to strike out the negligence claim was upheld.
• County Court: Recorder Riza QC dismissed the application to strike out the claim. The precise citation was not stated in the judgment.