Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4

Key points

  • Reasserted the incremental approach to duty of care
  • Ordinary principles of negligence, namely the omissions rule and its exceptions, apply to public authorities
  • The police do not benefit from any special immunity from liability based on public policy

Facts

  • Two police officers injured an old woman (C) by falling on her while chasing a drug dealer
  • C claimed negligence
  • D argued that the police are immune from negligence liability when exercising their powers of investigation or crime prevention on the ground of public policy

Held (Supreme Court)

  • The police officers were liable for negligence
  • The liability of the police is based on ordinary principles of negligence, as such no special immunity applies to them
  • There was a positive act by the police injuring C, the risk of injury of passersby was foreseeable and there was a breach of duty: Lord Reed at [73]

Lord Reed

Anns test is rejected: [23]

  • The Anns test led to a period during which the courts struggled to contain liability, particularly for economic loss
  • Lord Oliver of Aylmerton stated extrajudicially that principle of prima facia liability has led to claims that have become more ‘divorced from common sense’ placing on D a ‘virtually insurmountable’ burden of showing good policy reasons as a defence

Caparo v Dickman supports an incremental approach to duty of care

  • Lord Bridge rejected any general principle which can be applied to every situation to determine whether a duty of car is owed and favoured an incremental approach – this was the key message of the decision by Lord Bridge not the tripartite test: [24] – [25]
  • The Caparo case achieves a balance between legal certainty and justice: [29]
    • When dealing with ordinary cases the courts will follow precedent
    • When dealing with novel cases, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence and weigh up the reasons for and against imposing liability, in order to decide whether the existence of a duty of care would be just and reasonable

Ordinary principles of negligence apply to the public authorities and the police

  • Public authorities are generally under a duty of care to avoid causing actionable harm in situations where a duty of care would arise under ordinary principles of the law of negligence: [33]
  • On the other hand, public authorities, like private individuals and bodies, are generally under no duty of care to prevent the occurrence of harm: [34]
  • The exceptions to the omissions rule, including the assumption of responsibility similarly apply: [34]
  • As Lord Toulson held in Michael, the police when engaging in investigations do not owe a duty of care towards victims of crime, the true reasoning being that the general law of negligence does not impose liability for omissions, rather than there being a general immunity from suit in respect of anything done by them in the course of investigating or preventing crime: [50], [55]

Prior public authority cases can be explained by ordinary principles: [7]

  • Michael was an omissions case, where the police failed to respond to an emergency call in time
  • Barrett v Enfield involved an assumption of parental responsibilities by the public authority
  • Phelps v Hillingdon concerned a relationship between the public authority and claimants which involved an implied undertaking to exercise reasonable care, akin to the relationship between doctor and patient

Lord Mance

  • “What I think emerges from this examination of past authority is that it is not possible to state absolutely that policy considerations may not shape police or Crown Prosecution Service liability in a context where the conduct of the police may perfectly well be analysed as positive, rather than simply as involving some form of omission”: [94]
  • Noted that there were cases where where public policy considerations prevented duties of care from being imposed even though harm was caused by positive acts of the police (extended detention and racist attacks by the police had led to suspects suffering from psychiatric injury): [91] – [94]

Lord Hughes

  • “The ultimate reason why there is no duty of care towards victims, or suspects or witnesses imposed on police officers engaged in the investigation and prevention of crime lies in the policy considerations examined above and, in the end, in the clear conclusion…that the greater public good requires the absence of any duty of care”: [118]

Commentary

  • Lord Reed’s judgment states strongly that ordinary principles of negligence should apply to public authorities, meaning that public policy considerations should not give any special immunity to the police or restrict the liability of public authorities in general
  • While Lord Reed’s judgment is the ratio of the case, it is important to note that Lord Mance did not support the complete rejection of policy considerations while Lord Hughes was entirely against it