“It is one thing to require a person who embarks on an action which may harm others to exercise care. It is another matter to hold a person liable in damages for failing to prevent harm caused by someone else.”
“114. It does not follow from the setting up of a protective system from public resources that if it fails to achieve its purpose, through organisational defects or fault on the part of an individual, the public at large should bear the additional burden of compensating a victim for harm caused by the actions of a third party for whose behaviour the state is not responsible. To impose such a burden would be contrary to the ordinary principles of the common law. 115. The refusal of the courts to impose a private law duty on the police to exercise reasonable care to safeguard victims or potential victims of crime except in cases where there has been a representation and reliance, does not involve giving special treatment to the police. It is consistent with the way in which the common law has been applied to other authorities vested with powers or duties as a matter of public law for the protection of the public. …”
“The only assurance which the call handler gave to Ms Michael was that she would pass on the call to the South Wales Police. She gave no promise how quickly they would respond. She told Ms Michael that they would want to call her back and asked her to keep her phone free, but this did not amount to advising or instructing her to remain in her house, as was suggested. Ms Michael’s call was made on her mobile phone. Nor did the call handler’s inquiry whether Ms Michael could lock the house amount to advising or instructing her to remain there.”
“Where the existence or non-existence of a duty of care has been established, a consideration of justice and reasonableness forms part of the basis on which the law has arrived at the relevant principles. It is therefore unnecessary and inappropriate to reconsider whether the existence of the duty is fair, just and reasonable (subject to the possibility that this court may be invited to depart from an established line of authority). Nor, a fortiori, can justice and reasonableness constitute a basis for discarding established principles and deciding each case according to what the court may regard as its broader merits. Such an approach would be a recipe for inconsistency and uncertainty …”
“In the tort of negligence, a person A is not under a duty to take care to prevent harm occurring to person B through a source of danger not created by A unless (i) A has assumed a responsibility to protect B from that danger, (ii) A has done something which prevents another from protecting B from that danger, (iii) A has a special level of control over that source of danger, or (iv) A’s status creates an obligation to protect B from that danger.”
“(i) Where a statutory authority (including the police) is entrusted with a mere power it cannot generally be made liable for any damage sustained to a member of the public by reason of a failure to exercise that power. In general the duty of a statutory authority is to avoid causing damage, not to prevent future damage due to causes for which they were not responsible … (ii) It follows that a public authority will not generally be held liable where it has intervened but has done so ineffectually so that it has failed to confer a benefit that would have resulted if it had acted competently … (iii) Principle (ii) applies even where it may be said that the public authority’s intervention involves it taking control of operations … (iv) Knowledge of a danger which the public authority has power to address is not sufficient to give rise to a duty of care to address it effectually or to prevent harm arising from that danger … (v) Mere arrival of a public authority upon, or presence at, a scene of potential danger is not sufficient to found a duty of care even if members of the public have an expectation that the public authority will intervene to tackle the potential danger … (vi) The fact that a public authority has intervened in the past in a manner that would confer a benefit on members of the public is not of itself sufficient to give rise to a duty to act again in the same way (or at all) … (vii) In cases involving the police the courts have consistently drawn the distinction between merely acting ineffectually … and making matters worse … (viii) The circumstances in which the police will be held to have assumed responsibility to an individual member of the public to protect them from harm are limited. It is not sufficient that the police are specifically alerted and respond to the risk of damage to identified property … or injury to members of the public at large … or to an individual … (ix) In determining whether a public authority owes a private law duty to an individual, it is material to ask whether the relationship between the authority and the individual is any different from the relationship between the authority and other members of the same class as the individual …”
“I’ve tried contacting her but she’s changed her mobile number so there’s no way of me, unless I go over, I don’t really want to get involved.”
“Okay, I’m going to get the officers to go straight round, we need to obviously stop anything taking place and I’ll have a look and see what we know about them as well, okay?”
“PS Randall acted in a timely manner; he deployed to this job as soon as it came in, he raced to the claimant’s address arriving within minutes. He could do no more. He used his judgement, the perpetrator was outside her home, no one knew he was armed with a knife. I heard most of the police witnesses say that the most effective method to reduce risk is to remove its source and to arrest the perpetrator would achieve that aim. PS Randall knew the perpetrator was outside her home, he knew where he was and could now be arrested. He wanted to get there as soon as he could to effect that plan. I find PS Randall acted as many officers would have done and bears no responsibility for the events that sadly unfolded.”
“In essence her case is that if the police had acted differently he would have been arrested earlier or she would have acted differently, by residing elsewhere that night or not leaving the house. The claimant advanced no evidence that if she had been aware that he was outside she would not have left the house.”
“That duty arose immediately after the neighbour’s phone call as a result of the factors set out above and the content of the phone call. However, for the reasons set out in the House of Lords’ and Supreme Court’s decisions set out above (Hill and Smith and Van Colle and Michael) I do not consider that there was a civil law duty to protect the claimant physically, beyond providing the warning, despite the clear operational objective to arrest [Guzelyurt].”
“Prohibition of torture No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“75. The fundamental question, in my judgement, is whether DS Ellerby owed a duty of care towards these claimants. Thus, failing to confer a benefit will not generally bring a person, or a public authority, within the sphere of tortious liability in negligence, even where the public authority has a duty to act but fails to do so. But making matters worse by one’s actions does give rise to a duty of care: in a sense, the law thus echoes the first duty of a doctor, namely ‘do no harm’. 76. In my judgement, Mr Holdcroft is correct when he submits that, properly analysed, the positive acts relied on by the claimants on the part of DS Ellerby are no more than omissions or failings on his part to act, in disguise. …”
“(i)The Human Rights Act 1998 imposes on the state a general duty rigorously to enforce laws which prohibited conduct constituting a breach ofarticle 3 of the Convention so as effectively to deter such conduct, which requires that complaints of ill-treatment amounting to a violation of article 3 be properly investigated (the ‘investigative duty’). (ii) The positive obligation on the part of state authorities to investigate complaints arises both where state involvement in the acts said to breach article 3 was alleged and also in circumstances where non-state agents were responsible for the infliction of the harm. (iii) Even serious failures which are purely operational will suffice to establish a claim that an investigation carried out pursuant to an article 3 duty infringed the duty to investigate, provided that they were egregious and significant and not merely simple errors or isolated omissions.”
“This [the decision in D] shows that there is a wide range of failures, both operational and systemic, which will fall within article 3; but it must surely be the premise for such liability that the investigation in question is into conduct which is, and is known by the police to be, conduct engaging article 3. Thus, my decision does not represent a retreat from the requirement ‘to take such preventative operational measures that, judged reasonably, might be expected to avoid the risk’ …: that requirement remains in all its potency, but the risk must be identified at the time.”
“It has long been recognised that the tort of negligence draws a fundamental distinction between acts and omissions or, in the more illuminating language adopted in recent years, between making matters worse (or harming) and failing to confer a benefit (or to protect from harm). As a general rule, a person has no common law duty to protect another person from harm or to take care to do so: liability can generally arise only if a person acts in a way which makes another worse off as a result. In recent years this distinction has taken on added significance because it is now firmly established (or re-established) that the liability of public authorities in the tort of negligence to pay compensation is governed by the same principles that apply to private individuals. Many public authorities – notably, protective and rescue services such as the police force and fire brigade – have statutory powers and duties to protect the public from harm. But failure to do so, however blameworthy, does not make the authority liable in the tort of negligence to pay compensation to an injured person unless, applying the same principles, a private individual would have been so liable. That means that to recover such compensation a claimant generally needs to show that the public authority did not just fail to protect the claimant from harm but actually caused harm to the claimant.”
“(i) There is a fundamental distinction … between making matters worse, where the finding of a duty of care is commonplace and straightforward, and failing to confer a benefit (including failing to protect a person from harm), where there is generally no duty of care owed. … (iii) A difficulty in drawing the distinction (between making matters worse and failing to protect from harm) is how to identify the baseline relative to which one judges whether the defendant has made matters worse … The cases show that the relevant comparison is with what would have happened if the defendant had done nothing at all and had never embarked on the activity which has given rise to the claim. The starting point is that the defendant generally owes no common law duty of care to undertake an activity which may result in benefit to another person. So it is only if carrying out the activity makes another person worse off than if the activity had not been undertaken that liability can arise. (iv) Another way of stating the general rule is to say that a person owes a duty to take care not to expose others to unreasonable and reasonably foreseeable risks of physical harm created by that person’s own conduct. By contrast, no duty of care is in general owed to protect others from risks of physical harm which arise independently of the defendant’s conduct, whether from natural causes … or third parties … .”
“If A knows or ought to have known that B is in need of help to avoid some harm, and A knows or ought to have known that he has done something to put off or prevent someone else helping B, then A will owe B a duty to take reasonable steps to give B the help she needs.”
“The basic stumbling-block for any argument based on assumption of responsibility in this case is the complete absence of any communication or interaction between the police officers who attended the scene of Mr Kendall’s accident and Mr Tindall. The police officers did not say or do anything of which Mr Tindall (or other motorists who drove along the relevant section of road after the police had left) were aware, or on which they could have relied. We find it impossible to see in these circumstances how an assumption of responsibility could be said to arise.”
“The obligation can be seen as comprising four components. There needs to be (1) a real and immediate risk (2) of the individual being subjected to ill-treatment of such severity as to fall within the scope ofArticle 3 of the Convention (3) that the public authority knew or ought to have known of that risk and (4) the public authority failed to take measures within their powers which, judged reasonably, might have been expected to avoid the risk.”
“There may be exceptional cases where the circumstances compel the conclusion that the absence of a remedy sounding in damages would be an affront to the principles which underlie the common law.”