MULLANEY v CHIEF CONSTABLE OF WEST MIDLANDS POLICE [2001] EWCA Civ 700

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CROWN COURT
AT BIRMINGHAM
Mr Recorder R Mitting QC sitting as a Deputy Judge of the High Court
[2001] EWCA Civ 700Case No Case No: 1998 M 02615Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Tuesday 15th May 2001
Between
MULLANEYClaimant RespondentCHIEF CONSTABLE OF WEST MIDLANDS POLICEDefendant Appellant
Before
Lord Justice PotterLord Justice ClarkeMr Justice BodeyMr Richard Perks, (instructed by Sharpe Pritchard, as agents for J M Kilby represented the appellant)Mr Ralph Lewis QC, (instructed by Russell Jones & Walker,represented the respondent)Date 15 May 2001

LORD JUSTICE CLARKE:

Introduction

[1]This is an appeal by the defendant, the Chief Constable of the West Midlands Police, from an order of Mr Recorder Mitting QC, sitting as a Deputy Judge of the High Court, which was made on 18 th February 2000 and amended on 27 th March 2000, in which he entered judgment for the claimant on his claim for personal injuries and directed that damages be assessed. The judge also ordered the defendant to pay the claimant's costs on an indemnity basis. The appeal is brought in part pursuant to permission granted by the judge and in part pursuant to permission granted by Laws LJ. The Injuries[2]As the judge put it, on 27 th March 1994 at about 8.00 pm a tragedy occurred. The claimant, David Mullaney, a probationary police constable, than aged 29, attempted to arrest a 45 year old man of good character, Peter Corlett, for importuning in the public lavatories at Greyfriars Green in the centre of Coventry. Mr Corlett resisted arrest with growing and, eventually, extreme violence which included repeated kicking to the head of the claimant while he lay on the ground. The claimant sustained a serious head injury. Not long after the incident he suffered a grand mal fit in hospital. Eventually, his injuries led to his retirement from the police service on medical grounds. Mr Corlett committed suicide either the following day or very soon afterwards. The claimant's case was that the injuries he sustained in the later stages of the incident were caused by the failure of other police officers to come to his aid and so to stop the attack on him. The Decision[3]The judge held that the plaintiff sustained serious injury as a result either of a breach of duty owed to the claimant by the defendant as his quasi-employer or of a breach of duty by a fellow officer or officers for which the defendant was vicariously responsible, that the claimant was not guilty of contributory negligence and that the defendant was accordingly liable to the claimant for damages. The Appeal[4]Mr Perks challenges the decision of the judge on a number of grounds. In order to give proper consideration to the grounds of appeal it is necessary to consider what, if any, duties were owed to the claimant, whether there was a breach of duty for which the defendant was responsible, if so whether that breach caused the claimant's injuries and, if so, whether the claimant was guilty of contributory negligence. The defendant also challenges the judge's decision to order him to pay the costs on an indemnity basis. In order to consider the issues raised on the appeal it is convenient first to summarise the facts found by the judge. The Facts[5]The crucial events took place over a very short period on the evening of 27 th March 1994. The circumstances which led up to those events may be summarised in this way. The claimant had joined the police comparatively late, in July 1993, after obtaining a 2.1 degree and working as a commercial property surveyor until the bottom fell out of the market in 1991. After joining the police he received a certain amount of training in the law relating to sexual offences but unfortunately it did not include formal instruction as to the powers of arrest for importuning.[6]The claimant was first allowed to patrol independently as and from 20 th February 1994. On 27 th February he voluntarily took part in an operation to deal with importuning in two public lavatories in Coventry city centre, namely those at Greyfriars Green and those at New Union Street. He was part of a small team which had been formed for the operation. In addition to himself it comprised PC Cox and PC Gainer, who were both probationary officers, and PC McKirdy. Sergeant McNaney was in overall charge as acting inspector. He briefed the team but the briefing did not include instructions as to the powers of arrest for importuning. The claimant asked PC Cox and PC Gainer (who had more experience than him) what those powers were and PC Gainer told him that there was a power of arrest for persistent importuning. The claimant and PC Gainer both gave evidence and the judge found them both to be truthful and generally reliable witnesses. He further held that there had been no collusion between them before they gave their evidence.[7]In fact the power of a police constable to arrest for persistent importuning is limited in a way which the power of a member of the public is not. It is not necessary to set out the reasons here, but it is not in dispute that in the events which happened the arrests which were effected on both 27 th February and 27 th March 1994 were unlawful. The claimant made two such arrests on 27 th February. However, both arrests passed off peacefully, as did the whole operation on that day.[8]A second operation took place on 27 th March. On that occasion the team comprised PC Gaston and PC Burn, who were not probationary but full police officers, in addition to the claimant, PC Gainer, PC Cox and PC McKirdy. They were all in plain clothes except PC McKirdy who was in uniform. Sergeant McNaney was still in charge. He again briefed the team but again gave no instructions as to the officers' powers of arrest.[9]All the officers formed part of a single team, their individual roles being shortly as follows. PC Gaston was instructed to observe and enter the lavatories at New Union Street. PC Burn was instructed to work with PC Gaston. PC Gainer was instructed to observe and enter the lavatories at Greyfriars Green. PC Cox was instructed to work with PC Gainer. So was the claimant. PC McKirdy was to work in the enquiry office at Little Park Street police station. In addition to his role in the operation his duties included assisting Mrs Linda King and Mrs Jennifer Caddick who were civilian staff in the enquiry office. His allotted role in the operation was to co-ordinate the operation and to monitor radio calls concerning the New Union Street lavatory; it was also his duty to respond to any call for help from another officer engaged in the operation. Sergeant Heap was the central radio controller.[10]The New Union Street lavatories were about one hundred yards from the police station. The entrance could be seen from the inquiry office. The Greyfriars Green lavatories, on the other hand, were underground and were about 400 yards from the police station. The entrance was not visible from the police station.[11]The briefing given by Sergeant McNaney included the following. All officers were to tune their personal radios to channel seven, which was a discrete channel for the operation and which enabled them to communicate securely with one another. Each officer knew that he would enter lavatories alone with his personal radio silenced. The officers were, however, instructed to work in pairs, both for safety and in order that one officer might corroborate the evidence of the other.[12]PC Gainer made two arrests at Greyfriars Green. The first was made in conjunction with PC Cox while the claimant was keeping watch from the eighth floor of a nearby office block called Friars House. The second was made on his own at about 6.45 pm. While he kept watch from the office block the claimant kept a log which shows that he handed over to PC Cox at 6.30 pm so that he could take a refreshment break at the police station. It was while he was away that PC Gainer made his solo arrest. I should note that, in addition to the overall co-ordinating role of MC McKirdy, it was also the duty of the person keeping watch in Friars House to monitor radio calls from officers attending the Greyfriars Green lavatories.[13]While the claimant was away he heard PC Cox call for assistance on his radio. No-one responded. So the claimant voluntarily decided to cut short his break and return to the scene. Mrs King asked him why he was leaving and he said "I have got to get a prisoner". The judge found Mrs King to be a truthful and reliable witness. The claimant returned in order to help PC Cox and, if possible, to make an arrest. PC Cox said in a statement that he recalls the claimant saying to him that everybody else was in the station so he thought he had better come out.[14]The critical events took place after about 7.40 pm. At about that time PC Cox spoke to the claimant and said that he was having difficulty in making observations because of increasing darkness. The claimant said that he thought that PC Cox would take most of the observation equipment back to the police station and return soon afterwards to continue observations at ground level. He assumed that the same would happen as had happened on 27 th February when observations had continued well after dark. The judge accepted the evidence of the claimant as to the conversation between him and PC Cox. That evidence was somewhat different from that in PC Cox's statement, although the judge said that there might have been a genuine misunderstanding between them. PC Cox did not give evidence because he could not be found.

The judge set out the crucial events in this way:

"[The claimant's] account is that at 7.55 he was in the telephone kiosk opposite the Greyfriars Green lavatories. He went to the public lavatories underground which are shown in photograph six. He crossed the road and went down the stairs. He estimates it took him some 20 to 30 seconds to do that. He stood at one of the two urinals in the lavatories, the one nearest the stairs. He observed another man at the other urinal, for about two minutes. Another man (in fact, Mr Corlett) then came in and stood at the same urinal as the claimant. These events, accepting the claimant's starting time, as I do, must have taken place some time between 7.57 and 7.58. Mr Corlett very quickly started to masturbate and to look suggestively at the claimant. He then turned towards him with an erect penis, and the claimant then identified himself as a police officer and arrested him for importuning. The arrest was an unlawful arrest. The claimant's estimate of the time from Mr Corlett's arrival in the lavatory to his arrest is about half a minute. That may be slightly understated. Allowing, as one must, for the impossibility of estimating times precisely, I am satisfied, on the balance of probabilities, that the arrest took place some time between 7.58 and 7.59, probably nearer to 7.58 than 7.59. The other man (who had been observed by the claimant for two minutes at the other urinal) left, leaving the claimant and Mr Corlett alone. Mr Corlett resisted arrest. Blows were exchanged. They were not vicious or serious but they led the claimant to uttering further words of arrest for assaulting a police constable. The claimant then made the first of five radio transmissions, four of them on channel seven. All he was able to transmit was his collar number. He did so by pressing the button on his tunic pocket. He did so, he told me, and I accept, within seconds of making his arrest. That would put the time not long after 7.58, certainly before 7.59. There was no response to his call. The struggle continued. He made a second radio transmission, he says, some fifteen to twenty seconds after the first. He can't remember what was said. There was no response. That second transmission must have taken place some time between 7.59 and 8.00, probably nearer to 7.59. There was a lull in the fighting. The claimant tried to bluff Mr Corlett by claiming that there were police officers upstairs and the bluff worked for a while, but not for long, and Mr Corlett realised that there probably weren't. Mr Corlett continued to get the better of the struggle. By then he had landed one blow to the claimant's chin and one to his mouth, which split his lip. The claimant was tiring but not, at that stage, seriously hurt. Mr Corlett then tried to get upstairs. The claimant then made the third radio transmission on channel seven. He put the time as well over a minute after the second. He cannot remember what was said. Again, there was no response. That radio transmission must have been made some time between 8 o'clock and 8.01, probably nearer to 8 o'clock. He tried to handcuff Mr Corlett to the grill door into the lavatories. He failed, and Mr Corlett slammed his head hard against the grill on the right hand side. The claimant puts this incident about two minutes after his third radio transmission, in other words, about two minutes past eight. By this stage, he was tiring. Mr Corlett said: "
You are not taking me in." The claimant then made a fourth radio transmission to which, again, there was no response. His recollection is that that was made about a minute after the incident involving the grill, in other words, at about three minutes past eight. Mr Corlett ran off with the claimant in pursuit. He caught up with him above ground by the entrance to the ladies' lavatory. He slipped. Mr Corlett then repeatedly kicked him about the body and head. The claimant estimated that this part of the attack lasted about half a minute. Mr Corlett ran off towards Bull Yard and Shelton Square. This part of the incident must have occurred some time between three minutes past eight and four minutes past eight. Having failed on four occasions to raise assistance or even a response by channel seven, the claimant switched his radio transmitter so as to be able to transmit on the general police frequency, channel 46. This involved turning a dial and the channel was located simply by rotating the dial and locating the dial by clicking it at the right point. He told the controller (in fact, a Sergeant Heap at the police station) that he needed help. His estimate of the time at which he made that transmission is about four minutes past eight. About half a minute later, he says, a police car arrived in Bull Yard, which he had by then reached, a short distance from Greyfriars Green Public lavatory. The car was driven by PC Bell. The claimant was able to give a detailed description of his assailant to PC Bell and to the controller on the radio. He was then taken to hospital by PC Bell."[16]The judge then recounted the evidence of PC Bell whom he described as witness of undoubted truth. PC Bell was in a police car which was parked about ¾ of a minute's drive from Bull Yard, which is about 200 yards from the Greyfriars Green lavatories. He heard a transmission on channel 46 from the controller to the effect that there was a foot chase and an officer requiring assistance. He immediately drove to Bull Yard where he saw the claimant.[17]What then occurred was recorded on video tape. Although the tape has been lost, a note was made of what it showed. Among other things it showed the arrival of the police car at 20.05.26 which the judge held was PC Bell's car. He also held that it was a reasonably safe conclusion that the timings on the video were approximately right. He concluded that it showed that Mr Corlett ran into Bull Yard at about 4 minutes past 8.00 pm and that PC Bell's car arrived about 1½ minutes later.

The judge then made this crucial finding:

"I am satisfied on all of that evidence that a maximum of two minutes would have been the response time if the police at Lower Park Police Station had received and acted on any of the earlier messages. Therefore, if those police officers had received and responded to the first or second radio transmissions, a police car (almost certainly PC Bell's) would have arrived on the scene before the repeated kicking to the head of the claimant by Mr Corlett took place. The arrival of a police car would have forestalled or deterred such an attack by itself. Failing that, the police driver would have had ample time to come to the claimant's assistance before he slipped and fell and was kicked. I am not satisfied, on the balance of probabilities, that an earlier response would have prevented such injury, if any, as was occasioned to the claimant when his head was slammed against the grill. The timing is too tight. Such a conclusion would place undue reliance upon the precise accuracy of the claimant's estimates of the times at which various stages of the incident occurred."
[19]The judge then considered in considerable detail why there was no response to the claimant's earlier calls. He first made findings as to what should have happened:
" Why was there no response to his calls? This is the key factual issue in the case. What should have happened? I have clear evidence from Sergeant McNaney as to what should have happened, which I accept. He says that PC McKirdy was on radio duty in the front office. He should have monitored radio traffic and coordinated the operation. If a call was received, he should have responded. If help was summoned or the caller sounded in trouble, he should have immediately contacted the controller, Sergeant Heap, on channel 46 who would himself immediately have put out a general call for help. If it was not obviously urgent, he should have tried to raise the caller, and if he could not, he should have notified Sergeant Heap that he could not, which would have caused Sergeant Heap to put out a general call for help directing police officers to go to the caller's aid. Thus, if PC McKirdy had done the duty assigned to him and the radio messages on channel seven had been clear, he should have heard the first call, attempted to raise the claimant and when he could not, notified Sergeant Heap. Even if he did not do so on receipt of the first call, he should have done so on receipt of the second."
[20]The judge analysed the evidence as to what the police officers in the police station were doing when the claimant made his attempts to radio for assistance. The defendant's case was (as the judge put it) that PC McKirdy fulfilled his duties to the letter. In support of that case he called PC Gaston and PC Burn and relied upon a computer log kept by Sergeant Heap. However, he did not call or adduce any evidence from either PC McKirdy or Sergeant Heap.[21]PC Gaston and PC Burn both said that they were in the front office by 8.00 pm and that PC McKirdy was there. Both said that they heard the claimant's collar number called over channel seven and realised he was in trouble. PC Gaston said "we immediately requested a message to be passed across channel 46. I believe PC McKirdy passed on the message". PC Burn gave evidence to like effect.[22]However, that evidence was contradicted by the oral evidence of Mrs King and by two written statements of Mrs Caddick, who did not give oral evidence because she was suffering from a terminal illness. Mrs King said that PC McKirdy had been drinking alcohol that day and that he was not in a fit state to be performing his duties. Mrs Caddick simply said that he was drunk when he started his tour of duty.[23]The judge described the crucial evidence of Mrs King and resolved the conflict of evidence in the following passage in his judgment, which is quite long but which I should I think record in detail. " At 7.55 - - Mrs King cannot now say how she knew the time but says that it was imprinted upon her memory - - she heard the claimant's voice on the radio; a voice, she described as obviously in need of help, frightened and panicky. She thought that another member of the team would answer but there was no response. Soon after, she heard the claimant's voice again shouting his collar number. There was panic in his voice. It was obvious he needed help, but again there was no response. She and Mrs Caddick then left the front office to seek help in the canteen some distance from the front office. She looked inside the canteen and behind screens in it. There was no-one there. Mrs Caddick looked upstairs in the social club room over the canteen. There was no-one there either. Their efforts to get help took, Mrs King estimated, some two minutes from the time at which she heard the second call to returning to the front office. As they returned to the front office, they saw PCs Gaston and Burn and McKirdy arrive at the front office. They collected their radios from the desk. They were rushing. She remembers a car leaving the yard with sirens on. Mrs Caddick's written account confirmed the evidence of Mrs King in detail After the incident, Mrs King, but not Mrs Caddick, recalls PC McKirdy saying to her that he would have to invent a log, that is to say, a log of his observations, the observations which he should have been keeping from the front office. Mrs King also said that she was spoken to by Sergeant Heap who told her that if she was asked, to say and do nothing about the incident. Mrs King and Mrs Caddick flatly state that the evidence of PC Gaston and Burn, which contradict their account, is not true. If the evidence of Mrs King and Mrs Caddick is true and reasonably accurate, it discloses a sorry state of affairs, first, serious dereliction of duty on the part of PC McKirdy secondly, a cover up of that dereliction of duty by the creation of a false log by Sergeant Heap; and thirdly, the giving of false evidence by PCs Gaston and Burn in this court to me. Neither of the two critical participants in this incident, whose actions are the subject of criticism (PC McKirdy and Sergeant Heap) has given evidence, nor was any statement obtained from them by the senior officers investigating the matter on, and immediately after, the day on which it occurred: Detective Inspector Turner and Detective Inspector Hislop. My first task is to assess the credibility of the three live witnesses whose evidence I have recounted; Mrs King, PC Gaston, PC Burn. Mrs King I found to be an impressive witness. She gave a clear account of events which were imprinted on her mind by their nature and by their consequence. She has since become a police officer herself despite the events that she has described, which might have caused another woman some disillusionment with the police service. I have asked myself if her sympathy for the claimant (which was evident) may have clouded her evidence. I am satisfied that it has not. I give as an instance of that, the evidence that she gave about what he said on departing early from his break. It does not tally with his own recollection. It might (on one view of the evidence) be thought to harm his case, but, even so, she gave that evidence unhesitatingly. I am satisfied that she told me the truth as she remembers it. I have reservations about the precise times given by her, but not about the basic structure of her account. I found PC Gaston and (to a lesser extent) PC Burn to be profoundly unsatisfactory witnesses. I mentioned earlier in this judgment an arrest effected by PC Gaston to which PC Burn was a witness earlier on in the day. Neither of them had been on an importuning operation before. Both of them say they fully understood their powers of arrest for importuning. PC Gaston said initially that Sergeant McNaney had explained those powers of arrest at the briefing, but accepted, when Sergeant McNaney had denied doing so, that his recollection in that respect was wrong. He was unable to say how he learned what the powers of arrest were, other than by word of mouth from previous operations. That evidence about his understanding of the power of arrest was belied by PC Gainer a truthful witness, who said that he explained to PC s Gaston and Burn as well as to the claimant, that they could arrest for persistent importuning. It is also belied by their own actions at 4.20 that afternoon when PC Gaston arrested a suspect at the Greyfriars Green public lavatory. He made up his notebook not long after the incident perfectly properly and in conjunction with PC Burn. The relevant extract from his notebook is at page 111 and it reads, after describing observations of what he had seen of the suspect:
"Stood at urinal, not urinating. Identified myself with warrant card," and then without any interruption or break, "
You have been observed loitering in this toilet on two occasions. You are under arrest for importuning for immoral proposes. Caution. Reply. 'OK. Can you verify your address or details?' Reply. 'No.'" PC Burn's note at page 108 is in identical terms. Those notebooks record an unlawful arrest. There would have been no shame in admitting it. The unlawful arrest arose from the inadequacy of the briefing that they had been given and the inadequacy of their instruction about the law relating to their powers. Instead, both pretended that words were said before the arrest which made it lawful, which inexplicably were not recorded in their note books. I do not propose to set out the contortions into which they were driven in an attempt to justify this stance. Anyone who wishes to examine them can read the transcript. This evidence was false and each knew it was false when it was given. Although the incident is wholly peripheral, it undermined my confidence in the truthfulness and reliability of their evidence on more critical matters. That evidence was, itself, unconvincing in these respects: I was unconvinced by their inability to remember where they were or what they were doing between 7 pm and 8 pm. I was unconvinced by their inability to remember whether or not the two civilian employees were in the front office for any, or part of, the time. I do not believe that they had their radios with them switched on between 7.45 and 8 pm. If they had done, they would have heard the claimant's radio transmissions and responded. I was also unconvinced by PC Gaston's suggestion that he might not have heard because of the alleged unreliability of channel seven. The lie to that assertion was given by PC Gainer who said that on that day, channel seven was as clear as a bell; and I am satisfied it was. PC Gaston's explanation for the odd passage in his evidence, which I have already noted, "We immediately required messages to be passed to channel 46. I believe PC McKirdy passed the message," produced a bizarre inconsistency when I asked him about it. He asked PC McKirdy to do it because it was quicker than doing it himself, but he said in answer to the previous question that he did not know if PC McKirdy's channel 46 radio was in the front office at all. I do not believe that either of them were in the front office at all. I do not believe that either of them were in the front office when the claimant's messages came through or, more important, that PC McKirdy was. I do believe the evidence of Mrs King and Mrs Chaddick that none of those three officers was there. The failure to hear and respond to the claimant's four radio messages on channel four was due, I am satisfied, to PC McKirdy's absence from his post. No explanation has been offered for that absence. His duties, the monitoring of radio traffic, the coordination of the operation and front office duties as the only uniformed police officer there, would not have taken him away. It is not suggested that he had an authorised break. There is simply no explanation for his absence. I am satisfied that his absence was not due to any good cause connected with the fulfilment of his duties. The circumstances of his departure from the police force may, in hindsight, provide a clue to why he was absent; he was required to resign or dismissed from the force (it matters not which) for driving with excess alcohol. I am satisfied (as the two civilian witnesses said) that he arrived on shift drunk and unable adequately to perform his police duties. The reason, therefore, for the failure to respond to any of the first four transmissions, was PC McKirdy's absence from his post and his dereliction of duty in that respect. The reason for the failure of officers other than PCs McKirdy, Gaston and Burns involve no breach of duty by them. Sergeant McNaney had almost certainly , as he told me, turned his radio transmitter either off or down so as not to interfere with the other duties that he had as acting inspector which included frequent telephone calls me. PC Gainer had switched off his radio so as to interview the suspect that he had arrested and to avoid interruption of that interview. Contrary to his evidence in his witness statement, I am satisfied that PC Cox also had his radio switched off because he regarded the operation as over. In his witness statement, he said that he had radioed the claimant on four occasions. I am satisfied that if he had done, the claimant would have heard him. Having, necessarily, his radio on for that purpose, he would have heard the claimant's calls for help. What of Sergeant Heap's log at page 90? The impression that it gives is that PC McKirdy sent a message on channel 46, to Sergeant Heap giving the location, Bull Yard and the message:
"1683 struggling with a prisoner."
That was not the message broadcast by Sergeant Heap, which, as picked up by PC Bell, was:
"Foot chase, and officer requiring assistance," probably adding: "
In the vicinity of Greyfriars Green and Warwick Road." Nor was it what PCs Gaston and Burn say PC McKirdy said to Sergeant Heap which was simply the claimant's collar number and the fact that he required help. If PC McKirdy was not the source of the message recorded at page 90 in the form that it is, who was? I am driven, I am afraid, to the conclusion that it was an attempt, a clumsy attempt made on the night of the 27 th , to conceal from senior officers PC McKirdy's dereliction of duty. Hence the statement which I accept was made to Mrs King by Sergeant Heap:
"Say and do nothing."
Issues on this Appeal[24]I have set out the judge's findings of fact in detail because some of them are the subject of attack on this appeal. The issues which arise on the appeal can be considered under the following headings: duty, breach of duty, causation, contributory negligence and costs. Before returning to the facts it is I think helpful to consider first the duties (if any) owed to the claimant. Duty[25]We have been told that it was only during the trial that the defendant took the point that no duty of care was owed to the claimant. However that may be, the claimant's case was put both before the judge and before us on two bases. The first was that one or more individual officers owed the claimant a duty of care of which he or they was or were in breach, which caused the claimant injury for which the defendant is vicariously liable. The second was that there was an employment or quasi-employment relationship between the claimant and the defendant, that the defendant owed the claimant the same duty as every employer owes to his employees, namely to take reasonable care for their safety in all the circumstances of the case so as not to expose them to unnecessary risk, that the duty is non-delegable, that there was a breach of that duty and that the claimant suffered loss as a result. It is appropriate to consider these two different ways of formulating the duty separately because they have been treated separately in the authorities. Indeed, the second approach has only recently been the subject of particular focus in cases concerning the police. Duty Owed by One Police Officer to Another[26]There have been a number of cases in recent years in which police officers have claimed damages from their chief constable or other chief police officer. Some have failed, but some have succeeded. There is no doubt that, if a police officer owes a duty of care to another police officer and if he is in breach of that duty the relevant chief police officer is liable provided that the breach is committed in the course of his 'employment': see section 48(1) of the Police Act 1964, which is now section 88(1) of the Police Act 1996.[27]The essential question under this head is whether the individual police officer (in this case PC McKirdy) owed the claimant a duty of care. In deciding whether such a duty was owed or not, the courts have considered that question in the context of their approach to the question whether police officers owed or would have owed a duty to members of the public in similar circumstances. In both such cases considerations of public policy have played an important part.[28]In a number of different types of situation, those considerations have persuaded the courts to hold that no duty should be held to exist either to a member of the public or to a police officer. Perhaps the highwater mark of that approach in relation to members of the public can be seen in the speech of Lord Keith in Hill v Chief Constable of West Yorkshire [1989] 1 AC 53. In that case the plaintiff's daughter was murdered by Peter Sutcliffe. The plaintiff alleged that the negligent failure of the police to investigate earlier murders and to apprehend Sutcliffe caused her daughter's death and that she was entitled to damages as a result. Her claim was struck out as disclosing no cause of action. Lord Keith, with whom Lord Brandon, Lord Oliver and Lord Goff agreed, gave two separate reasons for holding that the claim was properly struck out.[29]The first can be seen from this passage (at p 59):
"The question of law which is opened up by this case is whether the individual members of a police force, in the course of carrying out their functions of controlling and keeping down the incidence of crime, owe a duty of care to individual members of the public who may suffer injury to persons or property through the activities of criminals, such as to result in liability in damages, on the ground of negligence, to anyone who suffers such injury by reason of breach of that duty."
Lord Keith answered that question in the negative, as can be seen from these two further remarks that he made in the context of his consideration of Dorset Yacht Co Ltd v Home Office [1970] AC 1004 . He said (at p 63):
"Miss Hill was one of a vast number of the female general public who might be at risk from [Sutcliffe's] activities, but was at no special distinctive risk in relation to them, unlike the owners of the yachts moored off Brownsea Island in relation to the foreseeable conduct of the Borstal boys. … The alleged negligence of the police consists in a failure to discover his identity. But if there is no general duty of care owed to individual members of the public by the responsible authorities to prevent the escape of a known criminal or to recapture him, there cannot reasonably be imposed upon any police force a duty of care similarly owed to identify and apprehend an unknown one."
[30]That approach has been followed in a number of cases: see for example Alexandrou v Oxford [1993] 4 All ER 328 , where the plaintiff was the owner of a clothing shop which had been burgled. His claim based upon an allegedly negligent police investigation of the burglary failed.[31]The second reason given by Lord Keith was based on public policy. In a passage which has been much quoted in the later cases, he said (at pp 63-4):
"That is sufficient for the disposal of the appeal. But in my opinion there is another reason why an action for damages in negligence should not lie against the police in circumstances such as those of the present case, and that is public policy. In Yuen Kun Yeu v Attorney- General of Hong Kong [1988] AC 175, 193, I expressed the view that the category of cases where the second stage of Lord Wilberforce's two stage test in Anne v Merton London Borough Council [1978] AC 728 , 751-752 might fall to be applied was a limited one, one example of that category being Rondel v Worsley [1969] 1 AC 191 . Application of that second stage is, however, capable of constituting a separate and independent ground for holding that the existence of liability in negligence should not be entertained. Potential existence of such liability may in many instances be in the general public interest, as tending towards the observance of a higher standard of care in the carrying on of various different types of activity. I do not, however, consider that this can be said of police activities. The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes. While some such actions might involve allegations of a simple and straightforward type of failure – for example that police officer negligently tripped and fell while pursuing a burglar – others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do so. The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and retraversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted. I therefore consider that Glidewell LJ in his judgment in the Court of Appeal [1988] QB 60, 76 in the present case, was right to take the view that the police were immune from an action of this kind on grounds similar to those which in Rondel v Worsley [1969] 1 AC 191 were held to render a barrister immune from actions for negligence in his conduct of proceedings in court."
Lord Templeman expressed similar views at pp 64-5.[32]The approach based upon those or similar considerations of public policy has been followed not only in cases where the claimant was a member of the public, such as Ancell v McDermott [1993] 4 All ER 355 , but also in cases where the claimant was a police officer. Thus in Calveley v Chief Constable of Merseyside [1989] 1 AC 1228, which was heard and decided at about the same time and by some of the same members of the appellate committee as Hill , the House of Lords considered a claim by police officers who alleged negligence in the investigation of their activities. Lord Bridge (who gave the only substantive speech) said (at p 1238) that it would plainly be contrary to public policy to prejudice the fearless and efficient discharge by police officers of their vitally important public duty of investigating crime by requiring them to act under the shadow of a potential action for damages for negligence by the suspect. He added:
"If no duty of care is owed by a police officer investigating a suspected crime to a civilian suspect, it is difficult to see any conceivable reason why a police officer who is subject to investigation under the Regulations of 1977 should be in any better position."
[33]In Hughes v National Union of Mineworkers [1991] 4 All ER 278 May J struck out as disclosing no cause of action a claim by a police officer who was injured while policing the miners' strike and who alleged that the police officer in charge had deployed his men negligently. May J held that the officer in charge plainly owed no duty of care to the plaintiff. As I read his judgment he accepted a submission by counsel for the chief constable (at p 281) that, while there were circumstances in which a police officer might owe a duty of care to another, such a duty did not extend to circumstances where what was called in question was the immediate operational control of policemen seeking to deal with violent public disorder where the plaintiff's injuries were directly caused by those perpetrating the disorder.[34]May J carried out a detailed analysis of the decided cases including Hill and the classic cases on duty of care in different contexts such as Anns v Merton Borough Council [1978] AC 728 and Caparo Industries PLC v Dickman [1990] 2 AC 605 . In the course of that analysis he quoted, not only the second passage from the speech of Lord Keith from Hill which I have set out above, but also this passage from his speech (at p 240):
"There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence. Instances where liability for negligence has been established are Knightley v Johns [1982] 1 WLR 349 and Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242."
The facts of both Knightley and Rigby were so different both from the facts of Hughes and from the facts of the instant case, so that I do not think that it is of assistance to discuss them in any detail.[35]May J expressed his conclusions in this way (at p 288):
"Having considered Hill v Chief Constable of West Yorkshire on the one hand and Knightley v Johns and Rigby v Chief Constable of Northamptonshire on the other, in my judgment, as a matter of public policy, if senior police officers charged with the task of deploying what may or may not be an adequate force of officers to control serious public disorder are to be potentially liable to individual officers under their command if those individuals are injured by attacks from rioters, that would be significantly detrimental to the control of public order. It will no doubt often happen that in such circumstances critical decisions have to be made with little or no time for considered thought and where many individual officers may be in some danger of physical injury of one kind or another. It is not, I consider, in the public interest that those decisions should generally be the potential target of a negligence claim if rioters do injure an individual officer, since the fear of such a claim would be likely to affect the decisions to the prejudice of the very task which the decisions are intended to advance. Accordingly, in my judgment, public policy requires that senior police officers should not generally be liable to their subordinates who may be injured by rioters or the like for on the spot operational decisions taken in the course of attempts to control serious public disorder. That, in my judgment, should be the general rule in cases of policing serious public disorders. There may be exceptions where the plaintiff's injuries arise, as in Knightley v Johns, from specifically identified antecedent negligence or specific breach of identified regulations, orders or instructions by a particular senior officer. There is no such specific allegation in the statement of claim in this case and none has been suggested in argument. It follows that the plaintiff's claim against the third defendant taken at its pleaded highest is bound to fail and that the claim should be struck out. I therefore allow this appeal."
[36]In the later case of Swinney v Chief Constable of Northumbria Police [1997] QB 464 this court refused to strike out a claim by an informer alleging negligence in failing to keep the information secure on the ground that it was arguable that a duty was owed to the plaintiff and that the public policy identified in cases like Hill had to be balanced against other considerations of public policy, including the need to protect informers and to encourage them to come forward without undue fear of the risk that their identity would subsequently become known to the person implicated by the information.[37]In considering the first way in which the claimant puts his case on the instant facts the most important case is Costello v Chief Constable of Northumbria Police [1999] ICR 752 because it is much closer to this case than any of the others to which we were referred. The plaintiff was a woman police officer who was attacked and injured by a woman prisoner in a cell at a police station. At the time a police inspector, Inspector Bell, was standing nearby but did not come to the plaintiff's assistance. In an action against the chief constable the plaintiff alleged that Inspector Bell owed her a duty of care to go to her assistance and to take reasonable steps to prevent her from being injured, that he was in breach of that duty, that she suffered injury as a result and that the chief constable was vicariously liable by reason of section 48 of the Police Act 1964. Her claim succeeded at trial. The judge held that Inspector was in breach of his police duty to go to her assistance and that she suffered injury as a result. He held that that duty, which Inspector Bell acknowledged in evidence, was a duty that was owed at common law. An appeal to this court failed. Mr Lewis submits that the reasoning in Costello leads to the conclusion that individual police officers, and in particular PC McKirdy, owed the claimant a duty of care to come to his assistance on the facts found by the judge.[38]The principal judgment in Costello was given by May LJ, who had of course been the judge in Hughes. This court dismissed the appeal on the basis that the judge was correct to hold that Inspector Bell owed a duty of care to the plaintiff. May LJ again analysed the authorities in some detail. Those authorities included the rescue cases, including in particular those relating to the fire brigade and the coastguard: see eg Capital and Counties PLC v Hampshire CC and related cases [1997] QB 1004 and OLL Ltd v Secretary of State for Transport [1997] 3 All ER 397.[39]Having discussed the cases May LJ summarised the position in this way (at pp 766-8):
"I now summarise relevant strands drawn from the cases. For public policy reasons, the police are under no general duty of care to members of the public for their activities in the investigation and suppression of crime ( Hill's case). But this is not an absolute blanket immunity and circumstances may exceptionally arise when the police assume a responsibility, giving rise to a duty of care to a particular member of the public ( Hill's case and Swinney's case). The public policy considerations which prevailed in Hill's case may not always be the only relevant public policy considerations ( Swinney's case). Neither the police nor other public rescue services are under any general obligation, giving rise to a duty of care, to respond to emergency calls ( Alexandrou's case), nor, if they do respond, are they to be held liable for want of care in any attempt to prevent crime or effect a rescue. But if their own positive negligent intervention directly causes injury which would not otherwise have occurred or if it exacerbates injury or damage, there may be liability (the Capital and Counties Plc case). For public policy reasons, a senior police officer is not generally to be held liable to a subordinate for operational decisions taken in the heat of the moment and when resources may be inadequate to cover all possibilities ( Hughes's case). But a senior police officer may be liable to a subordinate for positive negligent intervention which causes injury to the subordinate and for particular failure or particular instructions given in breach of specific regulations which result in injury ( Knightley v Johns ). Just as circumstances may occur in which a police officer assumes responsibility in particular circumstances to a particular member of the public not to expose the member of the public to a specific risk of injury (Swinney's case), so in my judgment a police officer may in particular circumstance assume a similar responsibility to another police officer. The latter part of the last sentence is, I think, the only increment in this summary which goes beyond matters decided in the authorities to which I have referred. It is not in my view in any sense a difficult incremental step to take, since for obvious reasons the relationship between individual police officers working together is likely to be closer than any relationship between the police and particular members of the public. (Emphasis added) If a police officer tries to protect a member of the public from attack but fails to prevent injury to the member of the public, there should in my view generally be no liability in tort on the police officer for public policy reasons. This is analogous to the law relating to the fire services and quite close factually to Alexandrou v Oxford . If a police officer tries to protect a fellow officer from attack but fails to prevent injury to the fellow officer, there should in my view generally be no liability in tort. The relationship between the two police officers is arguably closer than the relationship between the police officer and the member of the public, but the public policy considerations are essentially the same and are compelling. One such consideration is that in the circumstances liability should not turn on, and the court should not have to inquire into, shades of personal judgment and courage in the heat of the potentially dangerous moment. But in this case, Inspector Bell acknowledged his police duty to help the plaintiff. Yet he did not, on the extraordinary facts found by the judge, even try to do so. In my judgment, his acknowledged breach of police duty should also incrementally be seen as a breach of a legal duty of care. The duty is a duty to comply with a specific or acknowledged police duty where failure to do so will expose a fellow officer to unnecessary risk of injury. Although I have expressed the duty so formulated as an increment, it is the same as, or very close to, the duty which founded liability in Knightley v Johns. There is also a sense in which Insp Bell (and perhaps the chief constable) assumed a responsibility, not absolute, for the plaintiff's safety. There is in my view in this case a strong public policy consideration to balance with those identified in Hill's case, that is that the law should accord with common sense and public perception. I am sure that Astill J was correct to say that the public would be greatly disturbed if the law held that there was no duty of care in this case. The particular circumstances of this case should not be left solely to internal police discipline. In addition, the public interest would be ill-served if the common law did not oblige police officers to do their personal best in situations such as these. The possibility of other sources of compensation is a relevant consideration, but not in my view more than that. Mr Robertson's floodgates submission is not more persuasive in this case than in others where there should be a duty. (Emphasis added) An ingredient of my conclusion is that close relationship between Inspector Bell and the plaintiff. They were police colleagues and he was in close attendance for the specific purpose of coming to her help is she needed help. It would not therefore follow from this analysis that I would also have found a duty of care owed by a police officer to a member of the public in otherwise similar circumstances. The balance of public policy could, depending on the circumstances, then be different. (Emphasis added) Conclusion For these reasons, I consider that, on the extraordinary facts found by the judge, Inspector Bell was in breach of duty in law in not trying to help the plaintiff. The chief constable is vicariously responsible for that breach, but was not personally in breach."
[40]Sir Christopher Slade agreed. So did Hirst LJ, because of what he described as the quite exceptional circumstances outlined by May LJ at the end of his judgment, although he (Hirst LJ) said that he had some anxiety as to whether it was just and reasonable to impose the duty of care seeing that the events occurred in an operational context, and involved an omission to act on Inspector Bell's part, not as in Knightly , a positive act of giving an order to a subordinate officer. He also added that the decision in Costello should not be interpreted as undermining the general principle laid down in Hill's case.[41]It is I think clear that the basis of the decision in Costello was that Inspector Bell assumed a responsibility to another police officer, namely the plaintiff. He acknowledged his police duty to help the plaintiff in circumstances in which there was nothing to prevent him from doing so. Yet he did not do so. He thus failed to comply with a specific or acknowledged police duty where failure to do so would expose a fellow officer to unnecessary risk of injury. May LJ identified what he described as a strong public policy consideration to balance those identified in Hill , namely that the law should accord with common sense and public perception.[42]In Kent v Griffiths [2001] 1 QB 36 this court, upholding a decision of Turner J, held that a duty of care was owed by the London Ambulance Service to a person waiting for an ambulance in circumstances where the LAS had accepted the request to provide an ambulance, but the ambulance did not arrive when it should have done. That case is thus to be contrasted with the fire brigade and coastguard cases referred to above. For present purposes it is perhaps worth noting that Lord Woolf MR (with whom Aldous and Laws LJJ agreed) said this (at p 47) with regard to the example of a police officer helping a pedestrian across the road:
"If the policeman assumes this task there is no reason of policy or proximity why he should be in any different position from a school teacher who performs this task and, if this is appropriate on the facts, is liable for negligence."
[43]When applying those principles to the facts of this case, the question is whether PC McKirdy or any of the other officers assumed a responsibility to the claimant to take reasonable steps for his safety by responding to a call for assistance made on channel seven. I shall return to that question below, but would add just one postscript to the observations made by May LJ. I agree with him that if a police officer tries to protect a fellow police officer from attack but fails to prevent injury he should not generally be liable to that officer in tort, but, as I see it, all will depend upon what, if any, duty he assumed for the safety of the claimant. If, for example, an officer in the position of Inspector Bell does not do nothing (like Inspector Bell) but intervenes negligently in such a way as to cause the claimant injuries which would not otherwise have been suffered, he might well be in breach of a duty of care owed to the claimant. All will depend on the circumstances. Duty Owed as Quasi-employer[44]The claimant's case under this head may be summarised in this way. Although the defendant as a chief constable was not the claimant's employer, because there was no employment relationship properly so called between them, he was in much the same position as an employer and as such owed the claimant the same duty as an employer would owe to his employees. Thus he owed a duty to take reasonable care for the safety of his officers including the claimant and that duty included a duty to take reasonable care to ensure that the system of work provided for them was a safe one. The provision of a safe system of work includes both the devising and operation of the system. The duty cannot be delegated.[45]Although a duty of this kind is touched on in some of the police cases including Hughes , it has achieved prominence only recently. Although the point was mentioned in Costello , as I read the judgments, this court did not decide the appeal on the basis of such a duty. Of the cases to which we were referred, the first case in which the point was given prominence was White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 . By a curious historical accident that appeal was argued in the House of Lords on 14 th , 15 th and 16 th July 1998 and the speeches were delivered on 3 rd December, which happens to have been the same day as judgment was given in this court in Costello , the argument having taken place on 6 th November. It is I think clear that when the judgments were given in Costello the court was unaware of the decision or reasoning in White , although I note that Mr Benet Hytner QC was counsel for the plaintiff in both cases.[46]The first question which arises under this head is whether there is any relevant distinction between the duty owed by an employer to his employees and the duty owed by a chief constable to the police officers in his charge. In my judgment, subject to the considerations of public policy discussed below, there is not.[47]In White the House of Lords considered claims by police officers who were said to have suffered psychiatric injury as a result of tending the victims of the Hillsborough tragedy. The claims failed because it was held by a majority (contrary to the view of the majority in this court) that the scope of the duty owed to the plaintiffs did not extend to protecting them from psychiatric injury in circumstances where none of them was exposed to personal danger or, put another way, none of them was what Lord Lloyd had described in Page v Smith [1996] AC 155 as a primary victim. In these circumstances it was held that police officers should not be able to recover damages in circumstances in which others could not: see eg Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 , where the claims also arose out of the Hillsborough tragedy and also failed.[48]The instant case is not concerned with psychiatric injury, but the significance of White in the present context is that no-one there suggested that the chief constable did not owe the same duty as any employer to the police officers in his charge. On the contrary, as I read the speeches, such a duty was accepted. Thus Lord Goff said (at p 481) that he would for present purposes include in the category of employee a quasi-employee "such as a police officer who, although he holds an office and is not therefore strictly an employee, is owed the same duty by his 'employer'" as an employee. It is true that Lord Goff dissented and would have dismissed the appeal, but there was no disagreement on the nature of the relationship between the chief constable and the relevant police officers.[49]Lord Steyn said (at p 497) that it would be artificial to rest a judgment on the distinction between the duty of an employer on the one hand and the duty of a chief constable on the other because "the relationship between the police officers and the chief constable is closely analogous to a contract of employment". He therefore said that he was content to approach the problem as if there was an ordinary contract of employment between the parties. Lord Hoffmann made a detailed speech of his own, but also said both that there was no dispute that a chief officer owes the same to duty of care to his officers as he would owe to an employee and that he agreed with Lord Steyn. Lord Browne-Wilkinson agreed with Lord Steyn and Lord Hoffmann. Lord Griffiths said that it was agreed that the police officers were to be considered for the purposes of the law as though they were employees of the chief constable.[50]In the later case of Waters v Commissioner of Police of the Metropolis [2000] 1 WLR 1607 , the House of Lords reversed a decision of this court (which is discussed in Costello ) in which the claimant's claim had been struck out as disclosing no cause of action. The claimant was a police officer who alleged that a fellow police officer sexually assaulted her while they were both off duty. She subsequently issued a writ against the commissioner alleging among other things that he was to be treated as her employer and that in breach of duty as such he had failed properly to deal with her complaint and had caused or permitted fellow officers to harass, victimise and oppress her with the result that she suffered harm including psychiatric harm.[51]Lord Slynn gave the principal speech, with which Lord Clyde and Lord Millett agreed. Lord Slynn said (at p 1610) that "it is clear, or at the least arguable, that duties analogous to those owed to an employee are owed to officers in the police service". Lord Jauncey also agreed with Lord Slynn subject to one point which is not relevant here. Lord Hutton too agreed with Lord Slynn, although he added this. After quoting the parts of the speeches of Lord Goff and Lord Steyn in White to which I have referred and after referring to the relevant parts of the speeches of Lord Griffiths and Lord Hoffmann, he said (at p 1617) that the claimant had a cause of action, by which I understand him to mean a cause of action for breach of the commissioner's duty as 'employer', unless he could rely upon some relevant consideration of public policy.[52]In all these circumstances, it is, in my judgment, now clear that the chief constable should be treated as owing to his officers the same duties as an employer owes to his employees, subject to such considerations of public policy as arise on the facts of a particular case. That proposition seems to me to be consistent, not only with the authorities to which I have just referred, but also with principle. The relationship between a chief constable and his officers is so closely analogous to that between an employer and his employees as to make it just in principle to hold that he owes the same duties to his officers as an employer does to his employees.[53]Such an approach is consistent with section 51A of the Health and Safety at Work etc Act 1974 ("the 1974 Act"), which was inserted into the 1974 Act by section 1 of the Police (Health and Safety) Act 1997 and which provides that for the purposes of the 1974 Act a police officer shall be treated as the employee of "the relevant officer", who is ordinarily the chief constable. Section 51A does not of course apply here because this accident occurred in 1994. It is not therefore appropriate to consider what, if any role there can be for public policy in proceedings brought under that Act, but section 51A is at least consistent with the proposition that a chief constable should be treated as owing the duties of an employer to his officers.[54]I will turn to the role of public policy in this context in a moment, but it is first appropriate to state briefly the duties of an employer to his employees. As the judge correctly pointed out, they were stated by Lord Brandon in McDermid v Nash Dredging Ltd [1987] AC 906 at 919 as follows:
"A statement of the relevant principle of law can be divided into three parts. First, an employer owes to his employee a duty to exercise reasonable care to ensure that the system of work provided for him is a safe one. Secondly, a provision of a safe system of work has two aspects: (a) the devising of such a system and (b) the operation of it. Thirdly, the duty concerned has been described alternatively as either personal or non-delegable. The meaning of these expressions is not self-evident and needs explaining. The essential characteristic of the duty is that if it is not performed it is no defence for the employer to show that he delegated his performance to a person, whether his servant or not his servant, whom he reasonably believed to be competent to perform it. Despite such delegation the employer is liable for the non-performance of the duty."
[55]It follows that, subject to any relevant considerations of public policy, the defendant owed the claimant a non-delegable duty of care both to devise and to operate a safe system of work. Thus, whether or not the system of work devised for the claimant was safe, the defendant is liable to the claimant for breach of duty if care was not exercised to operate the system safely and the claimant suffered injury as a result.[56]I turn to public policy. Mr Lewis submits that there is no room for the operation of public policy in this connection. He submits that once such a duty had been held to exist as a result of the employment or quasi-employment relationship between the parties, the only remaining question is whether there was a breach of the duty. There appears to me to be some logical force in that submission. It could certainly be held, as Lord Woolf put it in the case of the LAS in Kent v Griffiths (at p 53), that the requirement to establish that there has been a lack of care provides the LAS with the necessary protection. However, the decision in Waters seems to me to support the conclusion that public policy has a role to play in deciding whether a duty to devise and operate a system safely should be imposed upon a chief constable in any particular case.[57]In Waters Lord Slynn (at p 1611) asked the question whether there were any reasons of policy why the plaintiff's claim should not be entertained, or more correctly at the strike out stage, whether there it was plain and obvious that policy reasons precluded the claim from proceeding to trial. He added:
"Put another way can it be said that it is not "fair just and reasonable" to recognise a duty of care: Caparo Industries Plc v Dickman … ?"
It is thus clear that Lord Slynn regarded the general approach in Caparo as applicable to this class of case. Since, as stated above, the other members of the appellate committee agreed with his speech, even though the contrary does not appear to have been argued it seems to me that we should regard the duty of the chief constable as 'employer' to be subject to considerations of public policy.[58]The question then arises what those considerations of public policy are and how they impact upon a case of this kind where the duty of the chief constable is to be regarded in principle as closely analogous to that of an employer to his employees. As it seems to me there are a number of relevant considerations which depend upon the circumstances of the particular case.[59]For example, in Waters Lord Slynn referred (at pp 1611-2) to the fact that the courts have accepted that the police may not be sued for negligence in the investigation and suppression of crime, in which respect he referred in particular to Hill and Calveley as being relevant in that context. He distinguished both of those cases. He said:
"I do not consider that either of these cases is conclusive against the plaintiff in the present case. It is true that one of her complaints is the failure to investigate the assault on her and that if taken alone would not constitute a viable cause of action. But the complaints she makes go much wider than this and she is in any event not suing as a member of the public but as someone in an "employment" relationship with the defendant. Even the failure to investigate is part of her complaint as to that. Entirely different factors to those in Hill's case … arise. She is not as in Calvelely's case … complaining of delays in the investigation or procedural irregularities."
[60]Lord Hutton also discussed the role of public policy. As I read his speech, he regarded the existence of the 'employment' relationship as an important factor in deciding whether the plaintiff had a cause of action. He said (at p 1618) that if there had been an ordinary employment relationship between the parties the claimant would have a cause of action fit to go to trial and that "strong grounds arising from public policy considerations would have to be shown to justify striking out the plaintiff's action". He then distinguished Hill and Calveley on much the same basis as Lord Slynn and added this:
"In this case the plaintiff relies upon the relationship of quasi-employee and quasi-employer which exists between her and the defendant as giving rise to his duty of care, and this was a factor absent in Calveley's and Hill's case. I consider that in Swinney … Hirst LJ was right to state that where the police claim immunity against an action in negligence public policy must be assessed in the round, which means assessing the considerations referred to in Hill's case … together with other considerations bearing on the public interest in order to reach a fair and just decision."
[61]Lord Hutton then referred to Costello and sought to balance the public policy considerations which existed on the facts of Waters. He concluded that the balance should be struck in favour of allowing the plaintiff to proceed. It is not necessary to set out here the particular factors which he took into consideration because this is a very different case on the facts. The importance of the decision in Waters is, as I see it, two-fold. First, the House of Lords recognised the relevance of public policy in the context of a claim put forward on the basis of a breach of duty by a chief constable as quasi-employer. Secondly, the House recognised that in balancing the relevant considerations of public policy or (put another way) in deciding what is fair and just in all the circumstances the court should put into the balance in favour of the claimant police officer the fact that it is ordinarily the duty of an employer to take reasonable care to devise and operate a safe system of work.[62]In the instant case, the claimant's case is that the defendant neither devised nor operated a safe system of work. I have already referred to the system which was put in place, but it may be summarised in this way. The operation on 27 th March 1994 involved the deployment of one team in order deal with importuning at two different public lavatories. Each officer was equipped with a radio which was tuned to channel seven, which was a discrete channel for use on this particular operation. At any time two officers were assigned among other duties to listen to their radios on channel seven in order to respond to any call for help from another officer engaged on the operation. One of the purposes of the system was to provide backup for the safety of the officers in the public lavatories if assistance should be required.[63]As I see it, the system was intended to be a safe system one of the objects of which was to protect officers from possible risk from suspects. I am unable to accept Mr Lewis' submission that the system as devised was not a safe system. In my judgment the system as devised was safe. It took account of the possibility that one or more officers might need assistance and ensured that another officer was available to respond and mobilise such help as was required. Moreover I do not understand the judge to have held that the system as devised was not safe.[64]As I read his judgment the judge held, not that the police failed to devise a safe system, but that they failed to operate such a system because of the failure of PC McKirdy to listen to his radio and monitor calls from the other officers including the claimant. As the judge put it, "PC McKirdy's duty was, at least in part, to monitor the radio traffic for reasons of the claimant's and others' safety". The judge further held that it was reasonable to impose such a duty on PC McKirdy and that his failure to comply with it meant that the chief constable was in breach of his duty as the claimant's 'employer' to take reasonable steps to operate a safe system of work.[65]I agree. In my judgment the system as operated was not reasonably safe and the chief constable was in principle in breach of his non-delegable duty to take reasonable steps to operate the system safely. It is not in dispute that there was a sufficient relationship of proximity between PC McKirdy and the claimant because it was reasonably foreseeable that if he did not listen to his radio as he should have done assistance sought by an officer might not arrive in time to prevent injury. It follows that, subject to issues of causation, the chief constable is liable to the claimant for breach of duty unless there is some consideration of public policy which makes it unfair or unjust to impose such a responsibility on the defendant.[66]Before returning to public policy I should add that it was not suggested (in my view correctly) that this is an example of what has sometimes been described as a casual or collateral act of negligence. Here the negligence of PC McKirdy was not casual or collateral but central. The defendant had in effect delegated to him the operation of the system which was designed (among other things) for the safety of the officers engaged in the operation including the claimant. Instead of operating it PC McKirdy did the opposite. In dereliction of his duty he left his post with the result that the claimant was exposed to the very kind of danger which the system was designed to prevent or minimise.[67]In this regard the position is not dissimilar to that in McDermid , where Lord Brandon (with whom Lord Bridge, Lord Mackay and Lord Ackner agreed) said (at pp 919-920):
"It was contended for the defendants that the negligence of Captain Sas was not negligence in failing to operate the safe system which he had devised. It was rather casual negligence in the course of operating such system, for which the defendants, since Captain Sas was not their servant, were not liable. I cannot accept that contention. The negligence of Captain Sas was not casual but central. It involved abandoning the safe system of work which he had devised and operating in its place a manifestly unsafe system. In the result there was a failure by the defendants, not in devising a safe system of work for the plaintiff, but in operating one. "
In the instant case, unlike Captain Sas, it was not PC McKirdy who had devised the system, but that is not to my mind material. It was his duty to operate it. His approach involved abandoning the safe system that had been devised and not operating in its place any system for the safety of the claimant at all. As a result the system provided for the claimant became an unsafe one. Just as in the case of Captain Sas, there was a failure by the defendants, not in devising a safe system of work for the claimant, but in operating one. The defendant was right not to argue the contrary.[68]A possible such consideration can I think be seen from the following passage from the judgment of May LJ in C ostello where he is discussing the submissions of Mr Hytner on behalf of the plaintiff. May LJ said (at pp 758-9):
"Mr Hytner submits … that the scope of the duty owed by an employer, and the chief constable is in the position of an employer, is the same whatever the nature of the employment, namely to take reasonable care to avoid exposing the employee to unnecessary risk of physical or psychiatric injury. The emphasis is on the word 'unnecessary'. It may be necessary for police officers to be exposed to risk of injury because of the nature of the duties they are required to perform. The necessary risk may be affected by lack of resources. But the chief constable has to take care not to expose his officers to unnecessary risk by sensible policies and by seeing that subordinates take care to implement those policies. The scope of the duty varies widely according to the nature of the employment. Some jobs are inherently dangerous, some very dangerous (for example firemen, stevedores and police officers) and employers cannot reasonably protect their servants from all foreseeable danger. On the contrary they may be obliged knowingly to expose them to foreseeable risk of death, as if a fireman is instructed to enter a burning building to rescue a child."
[69]As appears in that passage, there are many circumstances in which police officers are of necessity exposed to danger. A good example is the policing of a riot or large public demonstration. In such circumstances it may not be just and reasonable to impose a duty on the chief constable to provide a safe system or, put another way, it may not be reasonably practicable to do so because of the inevitable risk to police officers if the police are to police the riot or the demonstration with existing resources. In such circumstances it may be appropriate to hold either that the scope of the chief constable's duty to provide a safe system of work does not extend to the policing of the operation or that a failure to provide such a system is not a breach of duty since, as Lord Brandon put it, the duty is to exercise reasonable care (my emphasis).[70]This is not such a case. In holding that it was fair and just to impose a duty here

the judge said this:

"On the facts, an important element of a safe system of conducting this operation was not operated by PC McKirdy. His dereliction of duty was not a decision taken in the heat of the moment of a violent struggle or something of that nature, nor was it a policy decision on the allocation of resources by the chief constable. In respect of either such type of decision, it is possible – on the current state of the law, highly likely – that policy considerations would negative the existence of a duty of care. … It is reasonable that the duty should have been imposed. The duty is not owed to the whole world but, on the facts of this case, to a very limited class, five police constables only. Even in other cases, the task would be limited to those officers within the force of which the chief constable was head or perhaps other officers working with or seconded to that force. The existence of the duty would not have impaired police operations or made them less efficient. Indeed, in similar circumstances in the future, it may encourage senior officers to take steps to ensure that junior officers perform their duty and have proper regard for the safety of those working under and with them."
[71]I agree with those conclusions. Each case will of course depend upon its own circumstances, which may vary greatly, but in my view there is no reason of public policy why the scope of the chief constable's non-delegable duty to take reasonable care to devise and operate a safe system of work for his officers should not extend to the operation of the system in this case. There was no problem of resources. A safe system was devised. In order to operate that system there was no need for any decision to be made in the heat of the moment. One of the purposes of the system was to ensure, so far as reasonably practicable, that assistance would be provided for one of the very few officers engaged on this limited operation. In all the circumstances I am of the firm opinion that on the facts of this case the public interest requires the imposition of the duty not its exclusion. Breach of Duty Breach of Duty Owed as Quasi-employer[72]I have already expressed my view that the chief constable was in breach of his non-delegable or personal duty owed to the claimant as his quasi-employer because, although a safe system was devised, it was not safely operated. It follows from what I have already said that, in my judgment, if PC McKirdy had exercised reasonable care he would have listened to the radio and the system would have been safely operated.[73]It should be noted, however, that this conclusion does not depend upon any breach of a personal duty owed by PC McKirdy, but on the wider conclusion that, for the system to be operated safely, one of the officers other than the claimant should have been listening to the radio on channel seven in order to respond to calls for assistance. There would have been no difficulty in one or other of the officers listening on channel seven as instructed, but none of them was doing so. It follows that there was a breach of the duty to take reasonable care to devise and operate a safe system and that, since the duty is non-delegable, the breach was in law that of the defendant. Duty Owed by One Police Officer to Another[74]Given my conclusion that the defendant was in breach of his duty as the claimant's quasi-employer, I can express my views under this head very shortly. The defendant's liability under this head depends upon whether any of the police officers owed a duty of care to the claimant for which the defendant is vicariously responsible. The claimant's primary case under this head is that PC McKirdy owed the claimant such a duty because he had assumed that responsibility.[75]Mr Perks submits that neither he nor any of the other officers had assumed such a responsibility. His submissions may be summarised as follows. PC McKirdy's role was to monitor radio calls from officers dealing with the public lavatories at New Union Street and not from officers dealing with those at Greyfriars Green. It was not his role, but that of the officer on duty in Friars House, to monitor calls from officers at the Greyfriars Green lavatories. As to the others, he submits that PC Cox had properly left Friars House with the authority of Sergeant McManey and had properly switched his radio off because he thought that the operation was over, that PC Gainer had done the same while he dealt with a prisoner and that, although neither PC Burn nor PC Gaston had his radio with him, that was irrelevant because neither of them was responsible for keeping a listening watch on his radio.[76]I accept Mr Perks' submissions with regard to the officers other than PC McKirdy, but in his case it seems to me that he assumed a responsibility to the other officers in the team, whether at New Union Street or Greyfriars Green, to listen to his radio on channel seven and respond to any calls for assistance made. The reason that all the radios were tuned to channel seven was no doubt just that. It is true that it was also his responsibility to monitor calls from New Union Street, but Sergeant McNaney made it clear in evidence that he should have been listening and that he should have responded to a call for assistance from Greyfriars Green, even though he would have expected the officer at Friars House to respond first. In these circumstances PC McKirdy must have known that other officers, including anyone at Greyfriars Green, were relying on him to assist. It seems to me to be clear that it was in reliance upon the assumption that someone would be monitoring any call which he made for assistance that the claimant called for assistance by pressing the button on his tunic pocket.[77]In all the circumstances, given his allotted role, I would hold that PC McKirdy assumed a responsibility to such officers (including the claimant) to take reasonable care to listen to the radio and to respond to calls for assistance. On the findings of fact made by the judge as set out above, it is clear that PC McKirdy wholly failed to discharge his duty and therefore did not respond when the claimant called for assistance in the expectation that someone was listening. It follows that he was in breach of his duty of care owed to the claimant and that the defendant is vicariously responsible for that breach. Causation[78]The next question is whether the breach of duty caused the claimant's injuries. The judge held that it did. I have set out his findings in paragraphs 15 to 23 above. Mr Perks challenges the crucial finding which I have quoted in paragraph 18 that the judge was satisfied on all the evidence that a maximum of two minutes would have been the response time if the police had received and acted on the messages which should have been heard and that, if they had received and responded to the first or second of the transmissions, PC Bell's police car would have arrived on the scene before the repeated kicking to the claimant's head took place. Mr Perks submits that that conclusion depended upon a detailed analysis of the time at which each event took place over a very short period and that that analysis was not justified on the evidence.[79]He submits that it was not appropriate for the judge to consider or to reach conclusions with the precision that he did. He relies upon these particular considerations (among others). Estimates and recollections of time are likely to be highly unreliable. Before the attack the claimant did not foresee that it was about to occur and had no reason to take particular note of the time at which each event occurred or of the interval between successive events. He was subjected to an unexpected and increasingly violent attack which led to serious injury. The claimant made no attempt to allocate a time to each event in the assault in his first statement which he made on 8 th April 1994. His first attempt to do so was not made until some five years after the attack.[80]Mr Perks submits that, notwithstanding the above, the judge attempted to analyse the times in great detail. I have set out in paragraph 15 above the detailed findings which the judge made in this regard. That quotation shows the care which the judge devoted to trying to ascertain what happened. He expressly allowed "as one must, for the impossibility of estimating times precisely", but did his best to fit in the various events which were described in the evidence. Those included the claimant finally calling on channel 46 and the response by PC Bell, whose evidence was confirmed at least in part by the evidence from the video referred to in paragraph 17 above. The judge was careful not to be too precise, as can be seen from the reasons he gave in the quotation in paragraph 18 above for holding that he was not satisfied on the balance of probabilities that an earlier response would have prevented any injury suffered when the claimant's head was slammed against the grill. He expressly held that the timing was too tight and that such a conclusion would place undue reliance upon the precise accuracy of the claimant's estimates of times.[81]The findings made by the judge did not depend entirely upon the evidence of the claimant. On the contrary, he paid particular regard to the independent evidence of Mrs King and Mrs Caddick, particularly that of Mrs King which was given orally. His conclusions based on that evidence are set out in paragraph 23 above and show that Mrs King was able to give evidence as to the time she first heard the claimant's voice on the radio, as to the failure of the police to respond, as to the efforts made to find help and as to what then happened.[82]It is the function of a trial judge to make findings of fact based on the evidence which he has heard and read. In this case the judge did his best to fit the evidence from various sources together. As already observed, he directed himself as to the care to be taken with time estimates and for that reason he held that only some of the injuries would have been avoided if the police had responded to the claimant's calls as they should have done. The above quotations show the care which he took. For my part, I can see no basis upon which this court could properly interfere with those conclusions. In my opinion the judge was fully justified in reaching the conclusions which he did. For these reasons, I would not interfere with the judge's conclusion that the defendant's breach of duty was the cause of the claimant's injuries which resulted from the repeated kicking to his head. The Log[83]At the end of the quotation in paragraph 23 above I have set out the judge's findings relating to Sergeant Heap's log. He held in effect that the log was not genuine, but a clumsy attempt to conceal PC McKirdy's dereliction of duty from senior investigating officers. In reaching his conclusion the judge relied to some extent at least upon the statement which he accepted was made to Mrs King by Sergeant Heap:
"Say and do nothing"
. Mr Perks challenges that conclusion at least in part on the ground that it was not a point raised in argument on behalf of the claimant and that as a result the defendant had no opportunity to respond to it.[84]It is accepted by Mr Lewis that it was not a point taken by him at the trial. In these circumstances it seems to me that it was not appropriate for the judge to make findings about it, at any rate without warning the defendant that he was considering doing so. I shall therefore disregard that part of the judge's judgment. It is not however necessary to consider the matter any further because Mr Perks properly accepts that whether the log was genuine or not does not affect the argument on any of the particular matters in dispute on this appeal, which I have discussed above. In particular it does not affect the correctness or otherwise of the judge's conclusion on causation. Mr Perks did suggest at one time that the judge's conclusion as to the log might in some way have tainted his other conclusions, but there is nothing in the judgment to support such a suggestion and, for my part, I would not accept it. It is for this reason that I mention it only as a postscript to this part of my judgment. Contributory Negligence[85]The judge rejected the allegation that the damages should be reduced on account of contributory negligence on the part of the claimant. Two allegations were made. The first was that the claimant went into the lavatories by himself when he should have been accompanied by another officer or at least ensured that another officer was close by. The second was that he persisted in efforts to arrest Mr Corlett after he had become violent.[86]As to the first, the judge held that it was a misjudgment on the part of the claimant to go into the lavatories by himself. He accepted the evidence of PC Gainer that, to the claimant's knowledge, the team had been told to operate in pairs. He also held that the claimant did not think and had no reason to think that the operation had been stood down and that he thought that PC Cox would return after returning some of the surveillance equipment to the police station. On the other hand he said that he was satisfied that the claimant did not know that PC Cox was in the vicinity when he went into the lavatories.[87]The judge held that the claimant's decision to enter alone was a misjudgment, but that it did not amount to contributory negligence. He said that he allowed his enthusiasm for his duty to overcome any caution that he might otherwise have had. He also had regard to the fact that the claimant was not the only officer who had made a solo arrest on that day and on the day of the previous operation. PC Gainer and PC Cox had done the same. The judge recognised that PC Gainer had described his own action as foolhardy, but said that that description was given with the benefit of PC Gainer's knowledge, in hindsight, of what had befallen the claimant.

The judge added this:

"At 7.55 on 27 th March, the claimant had no reason to fear an attack of such violence as would cause serious injury to him. His two previous arrests had been achieved without incident. He knew he had a radio, switched on, tuned into channel seven, to which all, or virtually all, of the other members of the team would be listening. Indeed if they had been, he would not, on the findings that I have made, have suffered the serious injury to his head which resulted from the repeated kicking. Furthermore, he was doing what he honestly and reasonably believed to be his duty. Police officers should not be discouraged from doing their duty by fear of a finding of contributory negligence against them if, in consequence of a misjudgment, they sustain injury. On balance, therefore, I do not consider that his misjudgment in entering the lavatories amounts to negligence of his own safety or that his misjudgment was materially responsible for his injuries to adopt the statutory test under section 1 of the Contributory Negligence Act 1945"
[89]Mr Lewis relies upon the judge's reasoning in that passage and he also relies upon two further considerations. The first is that the claimant was a young probationary constable with minimal relevant experience and the second is that he was not given proper advice or instruction as to a constable's powers of arrest. Mr Perks submits, on the other hand, that police officers, whether probationary or otherwise, should take care for their own safety and act with common sense and that the claimant did neither. He submits that the claimant should have anticipated a possible attack if he went in on his own and that the problem was that, as he said when he left the police station, he had "got to get a prisoner".[90]I prefer the submissions of Mr Lewis to those of Mr Perks. Of course all officers must take care for their own safety, but in my judgment the judge correctly described the action of the claimant in entering the lavatories by himself as no more than a misjudgment. I entirely agree with the reasoning of the judge in the passage quoted above. The claimant was a very inexperienced officer doing his best in circumstances in which he had no reason to expect an attack of such a nature and in which he could reasonably expect backup if he called for assistance on channel seven. In all these circumstances it would in my view be unjust to hold that the claimant was guilty of contributory negligence on the ground that he should not have entered the lavatories on his own.[91]The judge said that the second allegation could be summarily dismissed. He did so on the basis that, in trying to arrest and detain Mr Corlett, he was doing no more than he, in the heat of the moment and with some bravery, thought was his duty. I entirely agree with the judge that he could not possibly be held guilty of contributory negligence on that account. It follows that the appeal on contributory negligence fails. Costs[92]The defendant appeals against the order that he pay costs on an indemnity basis. The judge made the order because, as he put it, the claimant had been forced to overcome a case which was, in substantial part, false. Mr Lewis relied before the judge, as he has before us, on CPR Part 44 and in particular on rule 44.3(4). Under Part 44 the judge had a discretion whether to award costs on a standard or an indemnity basis and by rule 44.3(4)(a), in deciding what order to make about costs, he was bound to have regard to all the circumstances of the case including the conduct of the parties. By reason of rule 44.3(5)(c) the relevant factors include "the manner in which a party has pursued or defended his case or a particular allegation or issue".[93]In these circumstances Mr Perks properly concedes that the judge was entitled to take into account the way in which the defendant's case was advanced. He was thus entitled to take into account the fact that the defendant relied upon the evidence of PC Gaston and PC Burn which was deliberately untruthful and which was designed to persuade the court that they and PC McKirdy had monitored channel seven as PC McKirdy should have done. In short, they made a deliberate and dishonest attempt to mislead the court in order to defeat the claimant's claim. In these circumstances the judge was entitled to make an order for indemnity costs.[94]As I understood him, in the course of the argument Mr Perks accepted that that was so, but submitted that the judge should only have ordered indemnity costs in respect of part of the costs of the trial because the defence relied, at least in part, on what Mr Perks described as the respectable argument that the defendant did not owe the claimant a duty of care. I agree that that is a respectable argument, even if it was only advanced after the trial began, but the problem with Mr Perks' submission is that he did not submit to the trial judge that if an order for indemnity costs were to be made it should relate to only part of the costs.[95]It is not, in my judgment, generally appropriate for this court to interfere with the exercise of the discretion of a trial judge on costs in circumstances in which the appellant did not make a submission to the judge which he subsequently advances in this court. It might be possible to envisage a case in which that would not be so, but this is not in my opinion one of them. I see no basis upon which we could properly interfere with the exercise of the judge's discretion on costs. CONCLUSION[96]For the reasons which I have given I would hold that the defendant owed the claimant a personal or non-delegable duty as his quasi-employer to take reasonable care to devise and operate a safe system of work, that he was in breach of that duty and that the claimant suffered injury as a result. I would further hold, if necessary, that PC McKirdy owed the claimant a duty of care, that he was in breach of it, that the claimant suffered injury as a result and that the defendant is vicariously liable for that breach. Finally, I would hold that the claimant was not guilty of contributory negligence. In short I would dismiss the appeal on liability. I would also dismiss the appeal on costs.

LORD JUSTICE POTTER:

[97]I agree with the judgment of Clarke LJ and his analysis of the authorities which, in my view, make clear that, subject to the relevant considerations of public policy in any given situation, a Chief Constable should be treated as owing to his officers a non-delegable duty, analogous to that of the employer, to take reasonable care in all the circumstances of the case not to expose his officers to unnecessary risk of injury (c.f. Wilson and Clyde Coal v English [1938] AC57, Latimer v AEC Limited [1953] AC 643 ), part of which duty involves the duty to exercise reasonable care in all the circumstances to ensure that the system of work provided for them is a safe one.[98]If one looks at this case for a moment in terms of Lord Bridges' duty test in Caparo , the ingredients of foreseeability and proximity are not in doubt. The dangers to an officer under or in danger of attack of a failure to provide for monitoring of the radio band dedicated to the operation in which he is taking part are obvious. Nor is it in doubt that, through PC McKirdy's glaring failure to perform his role in monitoring the radio, he failed to operate the system of work which had in fact been devised for the safety of the inexperienced officers carrying out the operation on the ground. The problem arises in considering whether, in relation to the third limb of Caparo, it was in all the circumstances just and reasonable in the public interest to impose a duty of care.[99]The critical question is whether, simply because the accident occurred in the course of a police operation, the Chief Constable should, on grounds of public policy, enjoy the same immunity from liability to an officer under his command as that which protects the police from liability to an ordinary member of the public in relation to police operations in the course of maintaining public order and investigating crime. I do not see why that should be so. The relationships involved in the two situations are of a very different kind. The relationship of a police officer as a (quasi) employee obliged to follow the instructions of his employer, and dependent upon him for the nature and safety of the system within which he works, is plainly distinguishable from that of a member of the public who is dependent upon the system and methods employed by the police in their operations only in the broader sense and looser situation of an individual relying upon the services of a public service organisation with which he or she has no direct relationship.[100]In the case of Hughes v NUM the observations of May J were directed to the policing of serious public disorders and, in particular, to 'on the spot operational decisions taken in the course of attempts to control serious public disorder', in relation to which there is a clear public policy interest in protecting the police against liability for negligence in the course of such actions. It does not seem to me that the dictates of public policy are such that the principle should extend to a position where (as in this case), in the context of a small and pre-planned operation with adequate manpower, there was a failure to take an obvious and necessary precaution for the safety of one of the officers involved. As appears from the judgment of May LJ in Costello , (see paragraph 39 above), he has more recently made clear that the considerations in Hill (which were not directed to the Chief Constable's duty of care as a quasi-employer) require to be flexibly treated according to the circumstances of the case.[101]I do not consider that a finding of liability in this case gives rise to the spectre of a host of claims challenging the operational decisions and methodology of the police force every time a policeman gets hurt on duty. The duty of the Chief Constable is to take reasonable care "in all the circumstances of the case". In this respect, it is vital to bear in mind the nature of police operations and the particular difficulties and emergencies which daily arise in respect of a service which is obliged to respond to the needs of the public, to wage a war against crime, and to take a variety of policing measures on a wide front with a limited budget, frequently with depleted numbers of officers available for those tasks.[102]In such circumstances, a Chief Constable is not in the position of an ordinary employer who may decline to undertake work on the grounds that is hazardous or beyond his resources, whether human or financial. The duty of a Chief Constable to take reasonable care in all circumstances for his officers' safety falls to be judged flexibly, taking into account considerations such as those I have described and which may vary from day to day. In any given case, it may well be the position that a Chief Constable, or other officer in charge of an operation, either has insufficient (if any) opportunity to draw up a detailed plan of operation, or to allot duties or make specific provision for safety measures which, with more time, opportunity or manpower (or, indeed, with the benefit of hindsight) would have prevented injury to one of his officers taking part in the operation. These are all matters to be taken into account. Nonetheless, I do not consider them to be matters which call on policy grounds for blanket exemption from liability of a Chief Constable, as a (quasi) employer, to take appropriate steps for the safety of police officers under his command in circumstances where there are no relevant limiting circumstances of the kind to which I have adverted as, for example, in this case.[103]Finally, I agree with Clarke LJ that, in the circumstances as found by the judge, there was an assumption of responsibility by PC McKirdy in respect of the officers in the field, including the claimant, during the Greyfriars Green operation, for which the Chief Constable should be held vicariously liable.[104]I too would dismiss the appeal. MR JUSTICE BODEY[105]I agree with both judgments and would also dismiss this appeal.

ORDER

Appeal dismissed with costs to be subject to a detailed assessment. (Order does not form part of approved Judgment)

Cited in 6 later judgments