Robinson v West Yorkshire Police [2014] EWCA Civ 15

Case No B3/2013/1552[2014] EWCA Civ 15
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Huddersfield County Court
Mr Recorder Pimm
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 5 th February 2014
Before
LADY JUSTICE HALLETTVICE PRESIDENT OF THE CACDLORD JUSTICE SULLIVANMR JUSTICE ARNOLD
Between
RobinsonAppellantChief Constable of West Yorkshire PoliceRespondent(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Ms Ceri Widdett instructed by Grieves Solicitors for AppellantMr Ian Skelt instructed by Office of the Force Solicitors for Respondent
JudgmentLady Justice Hallett, Vice President of the CACD :Introduction
[1]Mrs Robinson, the Appellant, is the victim of crime, but not in the traditional sense. On 29 July 2008 she was walking down a relatively busy street in Huddersfield when she became caught up in the arrest of a drug dealer. She was knocked to the ground and injured. By a claim form dated 11 July 2011 she sued the local Chief Constable for damages for personal injury. The only question for this court is the extent to which the Chief Constable is liable, if at all, in negligence for what happened to her.

Factual Background

[2]There is little, if any, factual dispute. DS Willan is the allegedly negligent officer. He was on an unrelated errand when he spotted a man called Williams dealing in ‘Class A’ drugs. He contacted a senior officer about what he should do. It was agreed he should make an arrest as quickly as possible, and preferably whilst Williams was still in possession of the drugs. He called for back up and considered possible locations for the arrest. He concluded it had to be on the street. The intention was to have two officers approach Williams from the front (Willan and Dhurmea) and two (Roebuck and Green) from the rear in a “pincer movement” in case he should try to escape. Williams was to be seized, pushed against an adjacent wall, restrained and arrested.[3]The incident was captured on Closed Circuit Television footage. One can see the Appellant walking up the road. Within a very short time of her passing Williams and his group, two well built officers in plain clothes approach, reveal themselves as police and seize hold of him. Unfortunately, Williams then struggles so violently, his momentum takes the group up the street towards the Appellant. They knock into her and all fall to the ground with the Appellant underneath. It takes Roebuck and Green three seconds to reach the melee. Others try to intervene in the arrest and to get rid of the drugs.

Trial Judge’s Findings

[4]Mr Recorder Pimm tried the case some five years later. I paraphrase his conclusions as follows: i) The arrest called for more careful planning and elimination of risk than that demonstrated. ii) The officers should have waited and selected a safer or better opportunity to carry out the arrest. There was no urgency. iii) There was a significant and foreseeable risk that Williams would try to escape. iv) The risk of injury to Mrs Robinson in particular was foreseeable given her proximity to the arrest. Her physical presence was sufficient in itself to amount to proximity in law. v) DS Willan was under a duty which he acknowledged to consider the risk to her and other members of the public near by. vi) Ds Willan failed to notice Mrs Robinson as he should have done. vii) There was no evidence to support the assertion that had all four officers gathered to arrest him, Williams might have recognized them as police officers. viii) DS Willan could and should have minimized the risk by deploying Roebuck and Green closer to the scene at the time of the strike. ix) DS Willan lost his hold on Williams; he did not jump on him recklessly. It was Williams’ struggling that took the melee to where Mrs Robinson was walking. x) This was a case of negligence but not outrageous negligence. xi) However, the “immunity” from suit for police officers engaged in the apprehension of criminals described in the case law applied and, despite the finding of negligence, the claim must be dismissed. The Appellant has permission to appeal the finding in relation to “immunity”. The Respondent wishes to appeal the findings of the existence of a duty and negligence, but supports the ultimate decision. The appeal 5. Ground 1: the Recorder was wrong in law to apply the three- stage (“Caparo”) test to the Appellant’s case of direct physical harm

The appeal

[5]Miss Widdett began by taking us back to basics; the starting point being the decision in Donoghue v Stevenson [1932] AC 562, at p 580 and Lord Atkin’s famous formulation of the general test for determining when a duty in negligence exists:
“The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question "Who is my neighbour?" receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
[6]She argued that for the vast majority of cases to establish a duty of care all that is required, therefore, is a reasonable foreseeability of harm and sufficient proximity in law. Public policy arguments play no part.[7]She sought to derive support for this proposition from the speeches in Home Office v Dorset Yacht Company Limited [1970] AC 1004 in which the House of Lords examined the application of the Donoghue v Stevenson principle to a claim against the Home Office for damage caused by inmates who had escaped from a Borstal institution. The majority of the House were content to impose a duty. Miss Widdett submitted that both Lord Reid and Lord Diplock explicitly recognised in their speeches that what Lord Reid called “the statement of principle” in Donoghue v Stevenson ought to apply unless there was some justification for its exclusion, as for example in negligence causing economic loss, where the principles of Hedley Byrne v. Heller [1964] A.C. 465 would apply. The public policy argument in respect of the work of prison officers was rejected.[8]Miss Widdett accepted that in the later decision of Caparo v Dickman [1990] 2 AC 605 the House of Lords appeared to modify the simple Donoghue v Stevenson test by introducing a third element so that the test for determining whether a duty of care may exist now consists of i) the foreseeability of damage, ii) a relationship of ”proximity” and iii) the court considers it fair, just and reasonable to impose a duty.[9]However, the claim in Caparo was for economic loss, not for direct physical harm. Accordingly, she interpreted Caparo as imposing the third stage of the test on claims for indirect harm only in which, she accepted, public policy considerations may be engaged. She did not accept the decision in Caparo was an attempt by the House of Lords to impose a degree of control over the growth of the law of negligence generally. She firmly resisted any suggestion that the third stage could apply to an action in negligence for damages for physical harm caused as a direct result of the alleged tortfeasor’s actions.[10]This brings me to the nub of Miss Widdett’s argument. It is premised almost entirely on the assertion that this is a case of a police officer causing “direct physical harm to a member of the public” whilst investigating and/or suppressing a crime. I put to one side for the present the fact that Mr Skelt argues this is not a case of direct physical harm at all but a case of officers failing to prevent harm by a third party. If so, on Miss Widdett’s argument the full Capraro test would apply. Miss Widdett insists that it is not a case of indirect harm and public policy considerations do not arise. There is no need for the court to ask itself whether it is fair just and reasonable for the action to proceed. Indeed, it would be wrong to ask the question. She argued forcefully that there is a duty on all police officers not to cause direct physical harm to members of the public whether or not they are engaged in the investigation and suppression of crime and that duty should be enforced. She distinguishes the various authorities to which I shall come in a moment by trying to allot them all into categories of indirect harm, economic loss or psychiatric injury, all ‘problem areas’ where, she accepts, the courts have been loathe to allow an expansion of the law of negligence without constraint.[11]When pressed to explain why she drew such a dramatic distinction between direct and indirect harm, she focused on the wrong doing (the “culpa”) at the heart of actions in negligence. She insisted there is a “higher moral culpability” on the part of the officer who negligently and directly causes physical harm than there is on the part of the officer who negligently but indirectly causes physical harm or the officer who negligently causes psychiatric harm or purely economic loss.[12]She placed considerable reliance upon a passage in the speech of Lord Keith in Hill v Chief Constable West Yorkshire Police [1988] 1 AC 53 a decision which Mr Skelt argues is directly in point and contradicts her argument. Mrs Hill’s daughter was one of the victims of the serial killer Peter Sutcliffe known in the media as the Yorkshire Ripper. Mrs Hill sued the West Yorkshire Constabulary for their allegedly negligent failure to prevent her daughter’s death. Lord Keith who gave the only fully reasoned speech summarized the issue on appeal to the House of Lords as follows at page 59 A/B:
“The question of law which is opened up by the 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 person 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.”
[13]The claim was dismissed on two bases: i. There was no general duty of care owed to members of the public to identify and apprehend an unknown killer. The fact that Miss Hill was young and female did not of itself place her at special risk and there were no other additional “vital” characteristics capable of establishing a duty of care of the kind as were present in Dorset Yacht. ii. In any event, as a matter of public policy, the police were generally immune from actions for negligence in respect of their activities in the investigation and suppression of crime. This became known as the Hill principle.[14]Applying the first principle, Mr Skelt submitted there was no general duty of care to Mrs Robinson. She happened to be one of a number of passers by. Applying the Hill principle, even as subsequently modified, he submitted the court should not impose a duty on the police to Mrs Robinson on these facts.[15]The passage in which Miss Widdett claims Lord Keith drew the distinction that suits her argument is at page 59:
“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 All ER 851, [1982] 1 WLR 349 and Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985, [1985] 1 WLR 1242.”
(p. 59)[16]In Knightley an Inspector of Police was found to be liable in negligence for not closing a tunnel at the scene of a road traffic accident and in ordering his subordinates to drive through the tunnel against oncoming traffic. In Rigby a Chief Constable was held liable in negligence for the actions of an officer who decided to fire a CS gas canister into a shop in an effort to arrest a dangerous psychopath. Both involved operational decisions and direct harm. No question of public policy “immunity” seems to have arisen in either case. Miss Widdett relies heavily on them both.[17]In a Scottish decision of 1999, Gibson v Orr 1999 SC 240 Lord Hamilton was concerned with a claim against a police officer for an operational decision. He drew a distinction between the role of the police in investigating crime and in performing ”civil operational tasks concerned with safety on the roads”. He rejected any claims to “immunity” in the latter category of case. Miss Widdett saw this as further support for her argument.[18]The decision in Rigby featured in a judgment discovered by Arnold J during the course of his researches, namely An Informer v A Chief Constable [2013] QB 579. The issue was whether the Chief Constable owed a duty of care to a particular informer. The three members of the court agreed on the result: that the nature of the relationship between the police and the informer meant that the Chief Constable had assumed a duty of care to protect his physical safety albeit, on the facts, there had been no breach of duty. They disagreed on liability for economic loss. What may be of some comfort to the Appellant is paragraph 94 of Arden LJ’s judgment. Having summarized the development of the Hill principle, and possibly relying upon the passage already cited from Hill at page 59, she observed: “One established category of case, however, is where the loss is directly incurred by the act or omission of the police. The police have been held to owe a duty of care where loss directly results from some act or omission of theirs, such as an instruction given to a colleague, or a failure to provide assistance to a colleague or the use of CS gas in premises without fire fighting equipment (see Costello v Chief Constable of Northumbria [1999] ICR 752and Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242). We are not concerned with this category of case.”.[19]The comment in relation to Rigby was undoubtedly obiter, but Miss Widdett gratefully accepted additional judicial support for her proposition. For his part, the decision made it slightly more difficult for Mr Skelt to advance the argument that Rigby would be decided differently today. He did his valiant best by emphasising the decision in Rigby pre-dates Hill and the point on public policy was not taken before Taylor J the trial judge. But he was forced to acknowledge the fact that the decision in Rigby has been endorsed more than once in Hill itself and subsequently.[20]I now turn to a review of the decisions put before us by counsel which appear to endorse the Hill principle, but which Miss Widdett attempted to distinguish by placing each into categories such as negligence by omission, negligence causing pure economic loss and or negligence causing psychiatric harm.[21]First, Elguzouli-Daf v Metropolitan Police Commissioner and McBrearty v Ministry of Defence [1995] QB 335 in which the Court of Appeal considered the extent to which the Crown Prosecution Service (“CPS”) owes a duty to those it prosecutes. The claims were brought by two men arrested, charged and detained for longer than necessary as a result of the action or inaction of the CPS. Miss Widdett put this in the category of indirect harm. However, policy considerations undoubtedly played a significant part in the decision. Concerned at the prospect of prosecutors becoming overly defensive and having to expend precious time and resources defending their actions in law suits, Steyn LJ held at page 349: “That brings me to the policy factors which, in my view, argue against the recognition of a duty of care owed by the C.P.S. to those it prosecutes. While it is always tempting to yield to an argument based on the protection of civil liberties, I have come to the conclusion that the interests of the whole community are better served by not imposing a duty of care on the C.P.S. In my view, such a duty of care would tend to have an inhibiting effect on the discharge by the C.P.S. of its central function of prosecuting crime. It would in some cases lead to a defensive approach by prosecutors to their multifarious duties.[22]A year later as Lord Steyn he returned to a consideration of the fair just and reasonable third stage of the Caparo test in Marc Rich & Co. AG v Bishop Rock Marine [1996] 1 AC 211. The claim was for economic loss (another of Miss Widdett’s categories) against a non profit making organisation dedicated to promoting safety at sea. In the course of rejecting the assertion that in cases of “physical damage” the only requirement was proof of reasonable foreseeability he held (at page 235 D):
“Counsel for the cargo owners submitted that in cases of physical damage to property in which the plaintiff has a proprietary or possessory interest the only requirement is proof of reasonable foreseeability. For this proposition he relied on observations of Lord Oliver of Aylmerton in Caparo Industries plc v Dickman[1990] 1 All ER 568 at 585, [1990] 2 AC 605 at 632–633. Those observations, seen in context, do not support his argument. They merely underline the qualitative difference between cases of direct physical damage and indirect economic loss. The materiality of that distinction is plain. But since the decision in Home Office v Dorset Yacht Co Ltd[1970] 2 All ER 294, [1970] AC 1004 it has been settled law that the elements of foreseeability and proximity as well as considerations of fairness, justice and reasonableness are relevant to all cases whatever the nature of the harm sustained by the plaintiff.”
[23]Lord Steyn specifically endorsed the approach adopted by Savile LJ in the Court of Appeal to similar effect. Thus, this decision appears to be clear authority for the proposition that the three stage Caparo test is appropriate in claims based on physical damage as well as in claims for pure economic loss. This did not deter Miss Widdett.[24]The House of Lords revisited the Hill “immunity” principle in cases involving the failure of police officers to protect third parties against harm in Brooks v Commissioner for Police [2005] All ER 489, and Van Colle and another v Chief Constable of Hertfordshire [2009] 1 AC 225.[25]Duwayne Brooks was with Stephen Lawrence when he was murdered in a notorious racist attack on the streets of London. Mr Brooks suffered from severe post-traumatic stress disorder which he claimed had been substantially aggravated by his treatment at the hands of the police. He accused the Metropolitan Commissioner for Police of failing to take reasonable steps to assess if he was a victim of crime, to afford him protection and assistance and to afford reasonable weight to his account. Their Lordships rejected any suggestion that the Hill principle provides the police with a blanket immunity and Lord Steyn called for a “more sceptical approach” than might have been the case to the carrying out of all public functions. Nevertheless, they unanimously rejected Mr Brooks’ claim. The public policy considerations referred to in Hill in relation to police investigation of crime and the apprehension of criminals amounted to a “conclusive argument in the Commissioner’s favour” (per Lord Bingham of Cornhill). Even if, as was accepted, the ratio in Hill required modification, the duties pleaded could not “even arguably be imposed on police officers charged in the public interest with the investigation of a very serious crime” (see paragraph 4).[26]Thus, there can be no doubt: the core principle of Hill remains. At paragraph 30 Lord Steyn observed:
“It is, of course, desirable that police officers should treat victims and witnesses properly and with respect: compare the Police (Conduct) Regulations 2004 (SI 2004/645). But to convert that ethical value into general legal duties of care on the police towards victims and witnesses would be going too far. The prime function of the police is the preservation of the Queen's peace. The police must concentrate on preventing the commission of crime; protecting life and property; and apprehending criminals and preserving evidence:”
[27]Miss Widdett placed the claim in Brooks in her separate category of psychiatric harm. However, she was forced to confront paragraph 32 of Brooks in which Lord Steyn again appeared to demolish the very argument she has advanced before us. In resounding terms he rejected the attempt by counsel to distinguish between indirect harm (failure to prevent harm from a third party) and direct harm describing it as “unmeritorious”. He said this:
“32 While not challenging the decision of the House of Lords in Hill's case counsel submitted that it can be distinguished. The only suggested distinction ultimately pursued was that in Hill's case the police negligence was the indirect cause of the murder of the daughter whereas in the present case the police directly caused the harm to Mr Brooks. That hardly does justice to the essential reasoning in Hill's case. In any event, Calveley v Chief Constable of the Merseyside Police [1989] AC 1228 , Elguzouli-Daf v Comr of Police of the Metropolis [1995] QB 335, and Kumar v Comr of Police of the Metropolis 31 January 1995 were cases of alleged positive and direct negligence by the police. The distinction is unmeritorious.”
[28]When pressed on these observations, Miss Widdett submitted the passage was “obiter”. As Mr Skelt pointed out, it was not. Lord Steyn was addressing directly one of the issues in the case and an argument from counsel that Hill could be distinguished on the basis of indirect/direct harm.[29]Miss Widdett also had some difficulty with the speeches of the majority of the House of Lords in Van Colle, preferring the dissenting speech of Lord Bingham and his “liability principle”. The issue in Van Colle and in the associated case of Smith was in broad terms: where the police are alerted to a threat that D may kill or injure V yet take no action and D does, in fact, kill or injure, should a duty be imposed upon them? The Hill principle and the issue of ‘police immunity” were re-examined in the light of developments in European jurisprudence in particular the decision in Osman v United Kingdom 1998 29 EHRR 245[30]Even in dissent, and not surprisingly in the light of earlier judgments, Lord Bingham did not disagree with the general principle in Hill or its application to those particular facts. However, he emphasized the ”particular importance that the law attaches to the protection of life and physical safety”. He felt there was scope for imposing a duty of care in the case of Mr Smith, given the particular relationship between him and police officers and the foreseeability of death or serious injury. To impose a duty on these facts would not offend the Hill principle and distract the police from their primary function.[31]Others disagreed: for example Lord Brown of Eaton-under-Heywood at paragraph 139 stated:
“Clearly the violation of a fundamental right is a very serious thing and, happily, since the Human Rights Act 1998 , it gives rise to a cause of action in domestic law. I see no sound reason, however, for matching this with a common law claim also. That to my mind would neither add to the vindication of the right nor be likely to deter the police from the action or inaction which risks violating it in the first place. Such deterrence must lie rather in the police's own disciplinary sanctions (as, indeed, were applied in Van Colle) and, in a wholly exceptional case like R v Dytham, in criminal liability. Rather I am satisfied that the wider public interest is best served by maintaining the full width of the Hill principle. There is, of course, in these cases (as in D v East Berkshire) always a price to be paid by individuals denied for public policy reasons (as not being “fair, just and reasonable” within the Caparo principle— Caparo Industries plc v Dickman [1990] 2 AC 605 ) a civil claim in the interests of the community as a whole.”
[32]Lord Hope drew attention to the decision in Gibson v Orr to which I have already referred as an example of when police officers may be found liable notwithstanding the Hill principle and without compromising the public interest in the investigation and suppression of crime. However, he and the majority had no doubt that to impose a duty on the police on the facts of Van Colle and Smith might well lead to the kind of defensive policing described in earlier cases and declined to do so.[33]Miss Widdett distinguishes the claims in Van Colle and Smith on the basis they were claims against the police for failing to prevent harm by another, in other words claims of indirect harm in which the three-stage test was correctly applied.[34]Finally, I come to the only other decision upon which significant reliance was placed before us namely Desmond v. Chief Constable of Nottinghamshire Police [2011] All ER (D) 37 [2011] EWCA Civ 3. Mr Desmond applied for an enhanced criminal record certificate for employment purposes. A senior police officer authorized the disclosure of an earlier arrest on a serious offence which had led to no charge. Mr Diamond sued for loss, stress and anxiety as a result of disclosure of the information to his prospective employer. Having considered very carefully the relationship between the statutory duty imposed on the senior police officer and any common law duty, the court dismissed the claims. It found there was no arguable duty of care.[35]However, in so doing the court considered the core principle of Hill and endorsed it. Absent special circumstances, the police and the CPS do not owe individual members of the public a common law duty of care in undertaking their operational duties of investigating, detecting, suppressing and prosecuting crime (paragraph 31). This may lead to hardship but the “greater public good outweighs the individual hardship”. The court listed a few examples of where liability has been imposed including Knightley and Rigby. The judgment of the court contains the following analysis:
“32 The modified core principle in Hill may not apply in exceptional circumstances at the margins; to an ordinary case where, for instance, in a road accident the police cause personal injury or physical damage by negligent driving; nor to cases where on particular facts a police officer is taken to have assumed responsibility to an individual claimant. Cases where liability for negligence against the police have been established or the existence of a duty of care has been held to be arguable include Knightley v Johns[1982] 1 WLR 349; Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242; Gibson v Orr[1999] SC 420 as to which see Van Colle at paragraph 79; Swinney v Chief Constable of Northumbria Police[1997] QB 464 as to which see Van Colle at paragraphs 80, 120; and Costello v Chief Constable of Northumbria [1999] ICR 152, as to which see Van Colle at paragraph 120.”
[36]Miss Widdett placed Desmond in the category of non-physical harm and suggested no reliance should be placed upon it for our purposes.[37]In summary, Miss Widdett insists the Recorder has wrongly expanded the category of cases to which public policy would be a defence to allegations of police negligence.

Conclusions on the Law

[38]Notwithstanding one’s sympathy for the unfortunate Mrs Robinson, for my part, I have no doubt the appeal must be dismissed. There are a number of routes to the same result.

Basic principle

[39]First, the basic principle is that where there is a wrong there should be a remedy. Any departure from that principle requires strict and cogent justification and regular review (per Lord Dyson JSC in Jones v Kaney [2011] UKSC 13; [2011] 2 AC 398 at paragraph 113). However, there are cases where it will not be fair just and reasonable to impose a duty and the interests of the public at large may outweigh the interests of the individual allegedly wronged.

Applicability of the Caparo test to claims for direct physical harm

[40]Second, the Caparo test applies to all claims in the modern law of negligence. The third stage of the test may have been triggered by the desire to constrain the development of the law of negligence in relation to claims which do not involve direct physical damage, but it has become part of the general law. In the vast majority of claims the answer to the question posed at the third stage of the test – whether it is fair just and reasonable to impose a duty- may be obvious but it still applies. I can see no justification in the case law or the textbooks for restricting its application to the more difficult areas. In any event, Miss Widdett accepts the first two stages of the Caparo test foreseeability and proximity apply to all claims and they will inevitably involve some examination of what might be called public policy. The court will only impose a duty where it considers it right to do so on the facts.[41]The idea that the Common Law would impose a duty, in circumstances where it is unfair unjust and or unreasonable to do so, is to my mind nonsensical. The court may not have used these words but the whole basis of the decision in Donoghue v Stevenson was that it was fair just and reasonable to impose a duty. The ginger beer was intended for consumption and produced in such a way the contents could not be examined by the ultimate consumer. The consumer had no contract with the manufacturer and therefore no other remedy. The manufacturer was understandably held liable for the damage caused to her.[42]Moreover, the adoption of the Caparo test to claims in negligence generally is reflected in all the most recent appellate decisions (even where reference is made to Rigby). The three issues of foreseeability, proximity and whether it is fair just and reasonable to impose a duty are addressed in turn, whatever the nature of the harm. An example of this which was not relied upon by counsel, is the decision in Smith and others v The Ministry of Defence [2013] 3 WLR 69.[43]In Smith and others, the Supreme Court considered the Caparo test in the context of a number of claims brought by soldiers or the families of soldiers who had been killed or injured while serving in Iraq. Some had been victims of so-called “friendly fire” and some of alleged equipment failure. They were met with the blanket defence from the Ministry of “combat immunity”. The members of the Court did not all agree on the result (namely when it is appropriate to impose duties of care on the Ministry of Defence in a combat situation), but there was no disagreement on the existence of the three stage Caparo test. There was no attempt to restrict its use in the way Miss Widdett suggests or to analyse the nature of the harm caused for these purposes. Lord Carnwath, for example, observed: “162.… the scope and content of any such duty of care are themselves matters for determination. In the modern law of negligence, the starting point for determining that issue is the application of the familiar three-fold test laid down in Caparo Industries plc v Dickman [1990] 2 AC 605, 618 per Lord Bridge.” 163. In that context, the scope of any so-called "immunity" necessarily overlaps with the question, under the third part of that test, whether it is ’fair, just and reasonable’ for the law to impose a duty of care at all (see Clerk & Lindsell On Torts 20th ed (2010), para 14-39ff ’Immunities’). As Lord Browne-Wilkinson has said: ’… a holding that it is not fair, just and reasonable to hold liable a particular class of defendants whether generally or in relation to a particular type of activity is not to give immunity from a liability to which the rest of the world is subject. It is a prerequisite to there being any liability in negligence at all that as a matter of policy it is fair, just and reasonable in those circumstances to impose liability in negligence.’ (Barrett v Enfield London Borough Council[2001] 2 AC 550, 559)[44]The direct physical harm argument was disposed of once and for all in Lord Steyn’s speech in Brooks and again in Marc Rich. As he observed, the distinction drawn by Counsel does not do justice to the rationale in Hill. It might be said it ignores it. The Hill principle is designed to prevent defensive policing and better protect the public. It would fundamentally undermine that objective to make the police liable for direct acts but not indirect acts. It would encourage the police to avoid positive action for fear of being sued. There is a “qualitative difference” (per Lord Steyn) between direct physical damage and indirect economic loss but that difference will only colour the court’s attitude to deciding when it is fair just and reasonable to impose a duty. It will not mean that claims one side of the line must fail and claims the other may proceed.[45]Moreover, the line between direct and indirect harm may be a very fine one. This case is a classic example. Miss Widdett claims this is a clear case of direct harm. Mr Skelt insists it is a clear case of indirect harm and the Recorder so found. Whether or not the police should be held liable should not depend on who was responsible for knocking into Mrs Robinson, the officer or the offender. It makes no sense to hold the Chief Constable liable in the former case but not the latter.

Claims against the police in relation to their core functions

[46]That brings me to my third conclusion. The general principle is that most claims against the police in negligence for their acts or omissions in the course of investigating and suppressing crime and apprehending offenders will fail the third stage of the Caparo test. It will not be fair just and reasonable to impose a duty. This is because the courts have concluded that the interests of the public will not be best served by imposing a duty to individuals. I shall not repeat the justification so eloquently expressed by others, in particular Lord Steyn, save for these two sentences: “The prime function of the police is the preservation of the Queen's peace. The police must concentrate on preventing the commission of crime; protecting life and property; and apprehending criminals and preserving evidence”.[47]This “immunity” (I use the term as shorthand) would be of little or no practical benefit if it was restricted in the way Miss Widdett suggested. Arresting criminals very commonly carries some form of risk. Yet, there is an obvious public interest in not imposing a duty which might deter the police from removing a drugs dealer from the streets. Miss Widdett posed the rhetorical question: what would the public think if the police, in the process of arresting criminals, could injure innocent members of the public with impunity? The answer is: provided the police act within reason, the public would prefer to see them doing their job and taking drug dealers off the street. It will be of little comfort to Mrs Robinson, but the risk to passers-by like her is trumped by the risk to society as a whole.

Blanket immunity

[48]However, the Hill principle does not impose a blanket “immunity”. The authorities and individual cases make that clear.[49]As to the extent of the principle, and guidance on when it may be dis-applied, no judge, as far as I am aware, has attempted a definitive list of possible exceptions. I shall resist the temptation to be the first. Lord Steyn in Brooks when raising the question of what might amount to a case of “outrageous negligence” and fall outside the Hill principle stated in terms that it would be “unwise to try to predict accurately what unusual cases could conceivably arise” (paragraph 34) . Also, Lord Carswell in Van Colle had his doubts about a separate category of “outrageous negligence” and no other judge has adopted it. In principle, therefore, although I can see the sense in exempting cases of outrageous negligence on the basis no one wishes to encourage grossly reckless police operations, I prefer to consider such claims as being on the margins. This is the category into which I assume the decision in Rigby would fit if decided today.[50]Other claims which may not offend the Hill principle include those which do not relate to core functions eg claims based on negligent traffic management decisions (as in Knightley) and claims where police officers have assumed responsibility for a claimant (as in An Informer). I appreciate that practitioners would prefer the courts to go further and provide greater guidance than these broad categories of when it will be fair just and reasonable to impose a duty. But, in my view, a careful analysis of the case law should provide a sufficient degree of certainty.[51]Thus, I am satisfied the three stage Caparo test does apply to the present action. If so, it is a paradigm example of why the courts are loathe to impose a duty towards individual members of the public on the police engaged in their core functions. It would not be fair just and reasonable to impose a duty on police officers doing their best to get a drug dealer off the street safely.

Conclusions on the trial judge’s findings

[52]That brings me to the Recorder’s findings. Had it been necessary, I would have felt obliged to overturn most of the findings for the reasons given by Mr Skelt. The evidence did not justify findings the officers were under a duty to Mrs Robinson even disregarding the Hill principle or that they were negligent.

Indirect harm

[53]One finding that was supported by the evidence, however, was the finding that Williams was responsible for the harm. This was clear from the CCTV footage. The claim was, therefore, a claim for indirect harm in that the police officers failed to prevent Williams cause harm to Mrs Robinson. If so, even had Miss Widdett’s argument on the law been successful, the claim fell at the first hurdle. It was not fair just and reasonable to impose a duty on these facts. Miss Widdett did not, in truth, strive to persuade us otherwise.

Imposition of duty and Proximity

[54]Further, in my view, the claim should have failed at the duty stage. The Recorder was wrong to impose a duty on the officers on the basis they accepted there was a risk to the public in carrying out the arrest and to conclude Mrs Robinson was in a sufficiently proximate relationship to them to justify imposing a duty of care.[55]It is not enough to say that an operation carries with it acknowledged risks and therefore there is a notional duty to any individual passing by. As Mr Skelt observed, a general professional obligation to seek to minimise risks does not equate to some form of legal duty.[56]The Recorder appears to have conflated the presence of the appellant near to the scene with her having ”proximity” at law. ”Proximity” has a particular meaning in this context far beyond mere presence. It is not enough to find, as the Recorder did, that she was physically close and there was a foreseeable risk to her, therefore she was sufficiently proximate.[57]”Proximity” in the context of a police officer is intended to reflect some kind of relationship between the Appellant and the Respondent above and beyond the duty owed by them to the public in general. The most obvious example would be the assumption of care as in the handling of an informant. There is nothing of that kind here.[58]There were several people within the immediate scene of the arrest. There was a relatively constant stream of pedestrian and road traffic. On the Appellant’s analysis, they were all within the scope of the rather general risk posed by Williams trying to escape. The Recorder made no attempt to analyse whether that was a sufficiently close relationship to amount to ”proximity” for a case of this kind. Had he done so, in my view he would have reached a different conclusion.

Negligence

[59]In any event, I have even greater doubts as to the finding of negligence. This is a classic case of the benefit of hindsight and highlights the dangers of judges sitting in judgment on police operational decisions. The Recorder, who one must assume is not an expert in the arrest and detention of suspects or their behaviour, has criticized the handling of a police operation in a number of ways. To my mind, the evidence did not come close to justifying his criticism.[60]Aware of a risk, DS Willan took particular care. He consulted a senior officer, he called for back up and he waited until the additional two officers were in position to strike. Their position was chosen on the basis the officers did not want to alert Williams to their presence, a sensible precaution one might think. If the two back up officers had got too close, the dealer or his lookout (if there was one as there usually is) would undoubtedly have spotted them.[61]DS Willan could not afford to wait as the Recorder found. He was bound to attempt the arrest or risk losing the suspect, who could have decamped at any moment, and the evidence. The delay of three seconds in the additional two officers reaching the scene is hardly worthy of criticism in these circumstances. Even if it was a mistake and a causative one (an issue not addressed in the court below) mistakes are not necessarily negligent. Ground 2: the Recorder was wrong in law to apply a blanket immunity. Ground 3: the Recorder was wrong in law to find that it required “outrageous negligence” to defeat the Hill principle.[62]I hope I have dealt sufficiently with both these grounds in the main body of the judgment. Had the Recorder found in the way that Miss Widdett suggested when drafting them, he would undoubtedly have been in error. However, he did not. He recognised there were a number of possible exceptions to the Hill principle and only considered whether “outrageous negligence” was present here because the parties had addressed him upon it. He did not find that a finding of “outrageous negligence” was the only way in which the principle could be defeated. In the circumstances it is not necessary to consider the two grounds further.

Result

[63]For all those reasons, I am satisfied the Hill principle does apply in general to the law of negligence and to the facts of this case. It was not fair just and reasonable to impose a duty on those facts. The findings that a duty existed and that there was a breach are unsustainable. I would dismiss the appeal. Mr

Justice Arnold:

[64]I agree that this appeal should be dismissed. Mrs Robinson was an innocent passer-by who was hurt when the police arrested Williams and Williams resisted arrest. She deserves compensation, but it does not necessarily follow that she has a claim in negligence against the police. In my judgment she does not, for two distinct reasons.[65]First, the Recorder was correct to conclude that the police did not owe Mrs Robinson a duty of care, since the circumstances fell within the core principle that the police do not owe a duty of care to victims, witnesses or defendants (let alone bystanders) when investigating and suppressing crime, in particular when arresting suspects: see Brooks v Metropolitan Police Commissioner [2005] UKHL 24, [2005] 1 WLR 1495 at [30] (Lord Steyn) and Van Colle v Chief Constable of the Hertfordshire Police [2009] 1 AC 225 at [73]-[80] (Lord Hope of Craighead), [106]-[108] (Lord Carswell) and [122]-[127] (Lord Brown of Easton-under-Heywood). Counsel for Mrs Robinson argued that the core principle did not apply where the police directly caused physical harm. While this argument receives support from dicta in some of the authorities (notably Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 at 59C (Lord Keith of Kinkel) and An Informer v A Chief Constable [1012] EWCA Civ 197, [2013] QB 579 at [94] (Arden LJ)), it was expressly rejected by Lord Steyn, with whom the other members of the House of Lords agreed, in Brooks at [32]. It is irrelevant to his reasoning that that case concerned psychiatric harm.[66]In both Brooks and Van Colle the House of Lords held that there may be exceptional cases in which the police do owe a duty of care even when investigating and suppressing crime. So far, the clearest example of such a case appears to be Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985. That was undoubtedly a case of suppressing crime: the police were attempting to apprehend a psychopath who was firing shots from the building in which he was holed up. Although Lord Steyn in Brooks quoted at [19] the passage of Lord Keith’s speech in Hill in which Lord Keith referred approvingly to Rigby, it is unclear whether Lord Steyn regarded Rigby as an example of the “cases of outrageous negligence by the police, unprotected by specific torts, which could fall beyond the reach of the Hill principle” to which he referred at [34]. Nothing which Taylor J said in his judgment in Rigby suggests, however, that he regarded the case as one of “outrageous” negligence. Lord Hope in Van Colle at [79] treated Rigby as an example of “cases where operational decisions taken by the police can give rise to civil liability without compromising the public interest in the investigation and suppression of crime”. I am respectfully unconvinced by that explanation, which seems to me to be inconsistent with Lord Hope’s analysis of the public policy reasons for holding that no duty of care exists when the police are investigating and suppressing crime. In my view, the best explanation of Rigby may be that it is an assumption of responsibility case. As Lord Brown explained in Van Colle at [120]-[121], the core principle which excludes a duty of care does not apply where there is an assumption of responsibility by the police. In Rigby, the chief inspector had realised that firing a CS canister into the building would create a risk of fire, and therefore had arranged for a fire engine to be present. Having assumed the responsibility of making arrangements to combat any resulting fire at the premises in that way, he was negligent in failing to ensure that the fire engine was still in attendance at the time he gave the order to fire the CS canister. In the present case, however, it is not suggested that the police assumed any responsibility to Mrs Robinson. Nor is there any other reason to regard the case as an exception to the general rule.[67]The second reason why Mrs Robinson has no claim is that, even if the police did owe Mrs Robinson a duty of care, the conduct of the arresting officers did not fall below the standard to be expected of reasonably competent police officers. In my judgment, the Recorder made two errors in concluding that, if there was a duty of care, it had been breached. First, he did not direct himself by reference to the standard of reasonably competent police officers. Secondly and in any event, I do not consider that his findings justified a conclusion of negligence. He found that the officers could have waited and selected a safer opportunity to arrest Williams, but he did not hold that their failure to do so was negligent in itself. Rather, he held that, in those circumstances, more careful planning and elimination of risk was called for. He did not find that there was anything negligent about the planning of the arrest, however. Thus it seems that it was the implementation of the plan that he considered to have been negligent. Upon analysis, however, his only real criticism of the implementation was that the second pair of officers was three seconds away at the moment when the first pair made the arrest. I am unable to understand how that could amount to negligence. The second pair had perfectly good reasons for holding off slightly, among which were to enable them to cut off Williams’ escape route if he ran away. Even if they did not, as Hallett LJ has pointed out, they should not be second-guessed with the benefit of 20/20 hindsight.

Lord Justice Sullivan:

[68]I too agree for the reasons given by Hallett LJ that the appeal must be dismissed

Cited in 6 later judgments