Nicholas Bowen QC & David Lemer in Supreme Court victory: Robinson v CC West Yorkshire

POLICE NEGLIGENCE: MAJOR VICTORY ON HILL IMMUNITY

 

The UK Supreme Court today handed down a seminal decision on the tort of negligence in the case of Robinson v Chief Constable of West Yorkshire [2018] UKSC 4.  Nicholas Bowen QC and David Lemer acted for Mrs Robinson, instructed by Duncan Fairgrieve and Grieves Solicitors.  Key issues flowing from today's decision include: (1) the liability of the police in negligence for the “supposed” Hill immunity, that police owe no duty of care in respect of action taken in the course of suppressing crime, does not exist; (2) the “idea that Caparo established a tripartite test is mistaken” in all but novel cases, and; (3) the case has important implications for watchers of the fate of CN v Poole.

 

This is a landmark case on the liability of the police and public authorities more generally, and by its judgment the Court has decided (click here for a link to the judgment), that the police owe a duty of care to avoid causing foreseeable personal injury to another person in accordance with the general law of tort, and that this extends to a duty to protect an individual from a danger of injury which they have themselves created.  The judgment builds upon and explains the 2015 Supreme Court decision in Michael v South Wales Police.  Contrary to previous dicta in both Court of Appeal and House of Lords / Supreme Court cases, it does not matter that the act or omission that caused the damage took place in the context of a “core” police activity”. 

 

A pre-planned arrest operation of a suspected drug dealer went badly wrong resulting in personal injury to Mrs Robinson, an elderly lady and innocent bystander in her late 70s who was out shopping in Huddersfield.  She ended up on the ground with two large officers and the suspect on top of her.

 

The Supreme Court unanimously found the police liable for the injuries caused to Mrs Robinson. Lord Reed giving the lead judgment dismissed arguments for the defendants that there was a general rule denying liability of the police when discharging their function of preventing and investigating crime, holding that this was a misunderstanding and misinterpretation of previous cases. On the contrary, “when discharging their function of preventing and investigating crime .. (t)hey generally owe a duty of care when such a duty arises under ordinary principles of the law of negligence, unless statute or the common law provides otherwise.”  The police, in common with everyone else, owe a duty of care to avoid causing foreseeable personal injury to another person.

 

In so holding, the Court re-established the pre-eminence of important principles of tort law, including the role of the Caparo test in determining the existence of a duty of care. Lord Reed re-affirmed the incremental approach underpinning the decision in Caparo, rejecting robustly the Court of Appeal’s view that the three-stage Caparo test “applies to all cases in the modern law of negligence” . The recent retreat in the role of public policy concerns was also confirmed, with Lord Reed confirming that such factors should not be a “routine aspect of deciding cases in the law of negligence”, and are only to be considered in novel cases.

 

A Diceyan approach to the liability of public authorities was underlined by the Court whereby the private law rules of tort apply similarly to public bodies and private persons alike. The omissions principle, which had been applied in a similar sphere in the Michael case, was reaffirmed so that public authorities, like private individuals, are not under a duty of care to prevent the occurrence of harm, other than in exceptional circumstances where the public authority has created a danger of harm, or has assumed a responsibility for an individual’s safety on which the individual has relied, or has been in control of the third party which caused the harm.

 

In the instant case, the injury of Mrs Robinson was found to have been caused by a positive act of the police in deciding to effect the arrest in circumstances in which it was not only reasonably foreseeable but actually foreseen that the suspect would attempt to resist arrest. That reasonably foreseeable risk of injury was sufficient to impose on the officers a duty of care towards the pedestrians in the immediate vicinity when the arrest was attempted.

 

The judge at first instance was entitled to have found that, on the facts, the police had been negligent. The chain of causation was not interrupted by the suspect’s voluntary decision to resist arrest, as that act was the very one which the defendant was under a duty to guard against.

 

The Chief Constable was thus found liable and the case was remitted for assessment of damages

 

Lords Mance and Hughes gave concurring judgments.

 

The judgements have important implications for whether or not the police will now be liable in a range of areas where they were previously thought to be protected by the immunity:

  • Most notably perhaps a failure to investigate.  This issue will be revisited in a further Supreme Court appeal due to be heard on 6 / 7 March 2018 in which Nicholas Bowen QC and David Lemer also act for Claimant police officers against the MPS Commissioner: https://www.supremecourt.uk/cases/uksc-2017-0003.html.
  • A variety of factual circumstances where the police have caused physical or psychiatric injury either by way of positive acts or have played an “active part in the critical events” which led to the damage, or a case where they have failed to protect a person from harm but they were in “control” of the person / risk who causes the damage and have a special / proximate relationship with the person who has suffered the damage.
  • The judgment may also have implications for the long-term survival of Lord Justice Irwin’s very recent and controversial judgment in CN v Poole Borough Council where the Court of Appeal boldly held that D v East Berkshire was no longer to be followed as a result of the judgment in Michael v SWP, a case that now needs to be read in the light of Robinson and the retreat from a policy justification for non-liability; watch that space.

 

The judgement is available here

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