Order #348305 Topic: [Revision] Tort Law - MOOT on duty of care

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Manchester Law School

LLB Year 1

Academic year 2018-19

Duty of care

Case Bundle

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This Bundle contains the following: 1. Hill v Chief Constable of West Yorkshire

2. Caparo Industries PLC v Dickman and Others (extracts only)

3. Kent v Griffiths and Others

4. Michael and others v Chief Constable of South Wales Police and another

5. Robinson v Chief Constable of West Yorkshire Police

THESE ARE CRUCIAL TO YOUR

PREPARATION FOR YOUR MOOT

ASSESSMENT

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ICLR: Appeal Cases/1989/HILL APPELLANT AND CHIEF CONSTABLE OF WEST YORKSHIRE

RESPONDENT - [1989] A.C. 53

[1989] A.C. 53

[HOUSE OF LORDS]

HILL APPELLANT AND CHIEF CONSTABLE OF WEST YORKSHIRE RESPONDENT

1988 Feb. 8, 9, 10; April 28

Lord Keith of Kinkel, Lord Brandon of Oakbrook, Lord Templeman, Lord Oliver of Aylmerton and

Lord Goff of Chieveley

Police - Duties - Law enforcement - General duty to suppress crime - Failure to apprehend violent criminal

resulting in murder committed by criminal - Whether liable for breach of duty of care

The plaintiff's 20-year-old daughter was attacked at night in a city street of the police area of which the

defendant was chief constable and died from her injuries. Her attacker, S., who was convicted of her murder,

was alleged to have committed a series of offences of murder and attempted murder against young women

in the area in similar circumstances over a period of years before the deceased's murder. The plaintiff

claimed on behalf of her deceased daughter's estate damages against the defendant for negligence, in that

in the conduct of investigations into the crimes which had been committed the police failed to apprehend S.

and prevent the murder of her daughter. On the defendant's application, the judge ordered the striking out of

the writ and statement of claim as disclosing no cause of action.

[1989] A.C. 53 Page 54

The Court of Appeal dismissed the plaintiff's appeal against that order.

On the plaintiff's appeal:-

Held, dismissing the appeal, (per Lord Keith of Kinkel, Lord Brandon of Oakbrook, Lord Oliver of Aylmerton

and Lord Goff of Chieveley) that, although police officers could be liable in tort to persons injured as a direct

result of their acts or omissions, there was no general duty of care owed by them to identify or apprehend an

unknown criminal, nor did they owe a duty of care to individual members of the public who might suffer injury

through the criminal's activities save where their failure to apprehend him had created an exceptional added

risk, different in incidence from the general risk to the public at large from criminal activities, so as to

establish sufficient proximity of relationship between the police officers and the victims of the crime; that

although it could have been reasonably foreseen that S., if not apprehended, would be likely to harm young

female members of the public, the fact that the plaintiff's daughter had been young and female did not of

itself place her at special risk and there being no other additional characteristics capable of establishing a

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duty of care owed towards her by the defendant in relation to the apprehension of S. the judge had been

right to strike out the statement of claim as disclosing no cause of action (post, pp. 62B-H, 64A-B, 65E, E-F).

Dicta of Lord Diplock in Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004, 1070-1071, H.L.(E.) applied.

Held, further, that as a matter of public policy the police were immune from actions for negligence in respect

of their activities in the investigation and suppression of crime (post, pp. 63A, H - 64A, 65B-G).

Rondel v. Worsley [1969] 1 A.C. 191, H.L.(E.) applied.

Per Lord Templeman. The efficiency of a police force cannot be investigated by an action for damages but

only by an inquiry instituted by the national or local authorities which are responsible to the electorate for that

efficiency (post, p. 65B).

Decision of the Court of Appeal [1988] Q.B. 60; [1987] 2 W.L.R. 1126; [1987] 1 All E.R. 1173 affirmed.

[…]

APPEAL from the Court of Appeal.

This was an appeal by the appellant, Doreen Violet Hill, by leave of the Court of Appeal (Fox and

Glidewell L.JJ. and Sir Roualeyn Cumming-Bruce) [1988] Q.B. 60 from their judgment dismissing

her appeal from the order of Sir Neil Lawson, sitting as a judge of the Queen's Bench Division,

dated 19 December 1985 striking out a statement of claim in an action for damages under the Law

Reform (Miscellaneous Provisions) Act 1934 by the appellant, as administratrix of the estate of her

daughter Jacqueline Hill, deceased, against the respondent, the Chief Constable of West Yorkshire

under the provisions of section 48(1) of the Police Act 1964.

The facts are set out in the opinion of Lord Keith of Kinkel.

[…]

Their Lordships took time for consideration.

28 April. LORD KEITH OF KINKEL. My Lords, in 1975 a man named Peter Sutcliffe embarked upon a

terrifying career of violent crime, centred in the metropolitan police area of West Yorkshire. All his victims

were

[1989] A.C. 53 Page 58

young or fairly young women. Between July 1975 and November 1980 he committed 13 murders and eight

attempted murders upon such women, the modus operandi in each case being similar. Sutcliffe's last victim

was a 20-year-old student called Jacqueline Hill, whom he murdered in Leeds on 17 November 1980. By

chance, Sutcliffe was arrested in suspicious circumstances in Sheffield on 2 January 1981, and confessed to

the series of murders and attempted murders following interrogation. On 22 May 1981, at the Central

Criminal Court, Sutcliffe was convicted of inter alia the murder of Miss Hill.

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Miss Hill's mother and sole personal representative now sues the Chief Constable of West Yorkshire,

claiming on behalf of Miss Hill's estate damages on the ground of negligence, for inter alia loss of

expectation of life and pain and suffering. The defendant is sued under section 48(1) of the Police Act 1964,

enacting that the chief officer of police for any police area shall be liable in respect of torts committed by

constables under his direction and control in the performance or purported performance of their functions.

The plaintiff in her statement of claim sets out the 20 offences committed by Sutcliffe before the death of

Miss Hill and avers that the circumstances of each of these were such that it was reasonable to infer that all

were committed by the same man and further that it was foreseeable that, if not apprehended, he would

commit further offences of the same nature. The pleadings go on to allege that it was accordingly the duty of

the defendant and all officers in his police force to use their best endeavours and exercise all reasonable

care and skill to apprehend the perpetrator of the crimes and so protect members of the public who might

otherwise be his future victims. A substantial number of matters are set out and relied upon as indicating that

the West Yorkshire police force failed in that duty. It is unnecessary to set out these matters in detail. They

amount broadly to allegations of failure to collate properly information in possession of the force pointing to

Sutcliffe as a likely suspect, and of failing to give due weight to certain pieces of information while according

excessive importance to others.

The defendant, without delivering defences, applied under R.S.C., Ord. 18, r. 19 to have the statement of

claim struck out as disclosing no reasonable cause of action. That application was granted by Sir Neil

Lawson, sitting as a judge of the High Court, on 19 December 1985. Upon appeal by the plaintiff the Court of

Appeal (Fox and Glidewell L.JJ. and Sir Roualeyn Cumming-Bruce) [1988] Q.B. 60, on 19 February 1987,

affirmed Sir Neil Lawson. The plaintiff now appeals, with leave given in the Court of Appeal, to your

Lordships' House.

In considering whether the statement of claim was rightly struck out it must be assumed that the averments

of fact therein contained are true. In particular, it must be assumed that in the course of their investigations

into the series of crimes committed by Sutcliffe the West Yorkshire police force made a number of mistakes

which they would not have made if they had exercised a reasonable degree of care and skill such as would

have been expected to be displayed in the circumstances by an ordinarily competent police force. It must

also be assumed, though this is not specifically averred in the statement of claim, that had

[1989] A.C. 53 Page 59

they exercised that degree of care and skill Sutcliffe would have been apprehended before the date upon

which he murdered Miss Hill, with the result that that particular crime would not have been committed.

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.

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 W.L.R. 349 and Rigby v. Chief Constable of

Northamptonshire [1985] 1 W.L.R. 1242. Further, a police officer may be guilty of a criminal offence if he

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wilfully fails to perform a duty which he is bound to perform by common law or by statute: see Reg. v.

Dytham [1979] Q.B. 722, where a constable was convicted of wilful neglect of duty because, being present at

the scene of a violent assault resulting in the death of the victim, he had taken no steps to intervene.

By common law police officers owe to the general public a duty to enforce the criminal law: see Reg. v.

Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 Q.B. 118. That duty may be enforced

by mandamus, at the instance of one having title to sue. But as that case shows, a chief officer of police has

a wide discretion as to the manner in which the duty is discharged. It is for him to decide how available

resources should be deployed, whether particular lines of inquiry should or should not be followed and even

whether or not certain crimes should be prosecuted. It is only if his decision upon such matters is such as no

reasonable chief officer of police would arrive at that someone with an interest to do so may be in a position

to have recourse to judicial review. So the common law, while laying upon chief officers of police an

obligation to enforce the law, makes no specific requirements as to the manner in which the obligation is to

be discharged. That is not a situation where there can readily be inferred an intention of the common law to

create a duty towards individual members of the public.

Counsel for the appellant, however, sought to equiparate the situation to that which resulted in liability on the

ground of negligence in Anns v. Merton London Borough Council [1978] A.C. 728. There the borough were

under a duty, imposed by legislation, to supervise compliance with building bye-laws, in particular as regards

the construction of foundations. It was held that though the borough had a discretion whether or not to carry

out an inspection of foundations in any particular case, in order to check compliance, once a decision had

been made to carry out an inspection the borough owed to future owners and occupiers of the building in

question a common law duty to exercise reasonable care in the inspection. In the present case, so it was

maintained, the respondent,

[1989] A.C. 53 Page 60

having decided to investigate the Sutcliffe murders, owed to his potential future victims a duty to do so with

reasonable care.

The foundation of the duty of care was said to be reasonable foreseeability of harm to potential future victims

if Sutcliffe were not promptly apprehended. Lord Atkin's classic propositions in Donoghue v. Stevenson

[1932] A.C. 562, 580 were prayed in aid, as was Lord Wilberforce's well-known two stage test of liability in

negligence in the Anns case [1978] A.C. 728, 751-752.

It has been said almost too frequently to require repetition that foreseeability of likely harm is not in itself a

sufficient test of liability in negligence. Some further ingredient is invariably needed to establish the requisite

proximity of relationship between plaintiff and defendant, and all the circumstances of the case must be

carefully considered and analysed in order to ascertain whether such an ingredient is present. The nature of

the ingredient will be found to vary in a number of different categories of decided cases. In the Anns case

there was held to be sufficient proximity of relationship between the borough and future owners and

occupiers of a particular building the foundations of which it was decided to inspect, and there was also a

close relationship between the borough and the builder who had constructed the foundations.

In Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004, 1060 Lord Diplock said of Lord Atkin's proposition:

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"Used as a guide to characteristics which will be found to exist in conduct and relationships

which give rise to a legal duty of care this aphorism marks a milestone in the modern

development of the law of negligence. But misused as a universal it is manifestly false."

Earlier he had said, at p. 1058:

"The judicial development of the law of negligence rightly proceeds by seeking first to identify

the relevant characteristics that are common to the kinds of conduct and relationship between

the parties which are involved in the case for decision and the kinds of conduct and

relationships which have been held in previous decisions of the courts to give rise to a duty of

care."

The Dorset Yacht case dealt with a situation where some Borstal boys, who, having records of previous

escapes, were encamped on Brownsea Island under the supervision of prison officers and escaped in the

night while their guardians slept, boarded a yacht moored nearby in order to make their way to the mainland

and manoeuvred it so as to damage the plaintiffs' yacht. One of the features of the case was that the

damage sustained by the plaintiffs was the direct consequence of a tortious act done with conscious volition

by a third party responsible for his own acts, which was interposed between the allegedly negligent conduct

of the prison officers and the damage suffered. The actual decision, which was on a preliminary point of law,

was that a special relationship existed on the one hand between the prison officers and the Borstal boys who

were in their custody, and on the other hand between the prison officers and the owners of yachts moored

near the encampment. That the boys might seek to make use of a yacht in order to get away to the mainland

[1989] A.C. 53 Page 61

and might damage it in the process was the very thing which the prison officers ought reasonably to have

foreseen. The prison officers had brought the boys, of whose propensity to attempt escape they were aware,

into the locality where the yachts were moored and so had created a potential situation of danger for the

owners of those yachts. Accordingly liability was capable of being established on the facts.

However, the class of persons to whom a duty of care might be owed to prevent the escape of detainees

was held to be limited. Lord Diplock said [1970] A.C. 1004, 1070-1071:

"The risk of sustaining damage from the tortious acts of criminals is shared by the public at

large. It has never been recognised at common law as giving rise to any cause of action

against anyone but the criminal himself. It would seem arbitrary and therefore unjust to single

out for the special privilege of being able to recover compensation from the authorities

responsible for the prevention of crime a person whose property was damaged by the tortious

act of a criminal merely because the damage to him happened to be caused by a criminal who

had escaped from custody before completion of his sentence instead of by one who had been

lawfully released or who had been put on probation or given a suspended sentence or who had

never been previously apprehended at all. To give rise to a duty on the part of the custodian

owed to a member of the public to take reasonable care to prevent a Borstal trainee from

escaping from his custody before completion of the trainee's sentence there should be some

relationship between the custodian and the person to whom the duty is owed which exposes

that person to a particular risk of damage in consequence of that escape which is different in its

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incidence from the general risk of damage from criminal acts of others which he shares with all

members of the public. What distinguishes a Borstal trainee who has escaped from one who

has been duly released from custody is his liability to recapture, and the distinctive added risk

which is a reasonably foreseeable consequence of a failure to exercise due care in preventing

him from escaping is the likelihood that in order to elude pursuit immediately upon the

discovery of his absence the escaping trainee may steal or appropriate and damage property

which is situated in the vicinity of the place of detention from which he has escaped. So long as

Parliament is content to leave the general risk of damage from criminal acts to lie where it falls

without any remedy except against the criminal himself the courts would be exceeding their

limited function in developing the common law to meet changing conditions if they were to

recognise a duty of care to prevent criminals escaping from penal custody owed to a wider

category of members of the public than those whose property was exposed to an exceptional

added risk by the adoption of a custodial system for young offenders which increased the

likelihood of their escape unless due care was taken by those responsible for their custody. I

should therefore hold that any duty of a Borstal officer to use reasonable care to prevent a

Borstal trainee from escaping from his custody was owed only to persons whom he could

reasonably foresee had property situate in

[1989] A.C. 53 Page 62

the vicinity of the place of detention of the detainee which the detainee was likely to steal or

appropriate and damage in the course of eluding immediate pursuit and recapture. Whether or

not any person fell within this category would depend upon the facts of the particular case

including the previous criminal and escaping record of the individual trainee concerned and the

nature of the place from which he escaped."

The Dorset Yacht case was concerned with the special characteristics or ingredients beyond reasonable

foreseeability of likely harm which may result in civil liability for failure to control another man to prevent his

doing harm to a third. The present case falls broadly into the same category. It is plain that vital

characteristics which were present in the Dorset Yacht case and which led to the imposition of liability are

here lacking. Sutcliffe was never in the custody of the police force. Miss Hill was one of a vast number of the

female general public who might be at risk from his activities but was at no special distinctive risk in relation

to them, unlike the owners of yachts moored off Brownsea Island in relation to the foreseeable conduct of the

Borstal boys. It appears from the passage quoted from the speech of Lord Diplock in the Dorset Yacht case

that in his view no liability would rest upon a prison authority, which carelessly allowed the escape of an

habitual criminal, for damage which he subsequently caused, not in the course of attempting to make good

his getaway to persons at special risk, but in further pursuance of his general criminal career to the person or

property of members of the general public. The same rule must apply as regards failure to recapture the

criminal before he had time to resume his career. In the case of an escaped criminal his identity and

description are known. In the instant case the identity of the wanted criminal was at the material time

unknown and it is not averred that any full or clear description of him was ever available. 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. Miss Hill cannot for this purpose be regarded as a

person at special risk simply because she was young and female. Where the class of potential victims of a

particular habitual criminal is a large one the precise size of it cannot in principle affect the issue. All

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householders are potential victims of an habitual burglar, and all females those of an habitual rapist. The

conclusion must be that although there existed reasonable foreseeability of likely harm to such as Miss Hill if

Sutcliffe were not identified and apprehended, there is absent from the case any such ingredient or

characteristic as led to the liability of the Home Office in the Dorset Yacht case. Nor is there present any

additional characteristic such as might make up the deficiency. The circumstances of the case are therefore

not capable of establishing a duty of care owed towards Miss Hill by the West Yorkshire Police.

[1989] A.C. 53 Page 63

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] A.C. 175, 193, I

expressed the view that the category of cases where the second stage of Lord Wilberforce's two stage test in

Anns v. Merton London Borough Council [1978] A.C. 728, 751-752 might fall to be applied was a limited one,

one example of that category being Rondel v. Worsley [1969] 1 A.C. 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 a 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. 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 L.J., in his judgment in the Court of Appeal

[1988] Q.B. 60, 76 in the present case, was right to take the view that

[1989] A.C. 53 Page 64

the police were immune from an action of this kind on grounds similar to those which in Rondel v. Worsley

[1969] 1 A.C. 191 were held to render a barrister immune from actions for negligence in his conduct of

proceedings in court.

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My Lords, for these reasons I would dismiss the appeal.

LORD BRANDON OF OAKBROOK. My Lords, I have had the advantage of reading in draft the speech

prepared by my noble and learned friend, Lord Keith of Kinkel. I agree with it, and for the reasons which he

gives I would dismiss the appeal.

LORD TEMPLEMAN. My Lords, the appellant, Mrs. Hill, is tormented with the unshakeable belief that her

daughter would be alive today if the respondent, the West Yorkshire police force, had been more efficient.

That belief is entitled to respect and understanding. Damages cannot compensate for the brutal extinction of

a young life and Mrs. Hill proposes that any damages awarded shall be devoted to an appropriate charity.

Damages awarded by the court would not be paid by any policeman found wanting in the performance of his

duty but would be paid by the public. Mrs. Hill therefore brings these proceedings with the object of obtaining

an investigation into the conduct of the West Yorkshire police force so that lives shall not be lost in the future

by avoidable delay in the identification and arrest of a murderer.

The question for determination in this appeal is whether an action for damages is an appropriate vehicle for

investigating the efficiency of a police force. The present action will be confined to narrow albeit perplexing

questions, for example, whether, discounting hindsight, it should have been obvious to a senior police officer

that Sutcliffe was a prime suspect, whether a senior police officer should not have been deceived by an evil

hoaxer, whether an officer interviewing Sutcliffe should have been better briefed, and whether a report on

Sutcliffe should have been given greater attention. The court would have to consider the conduct of each

police officer, to decide whether the policeman failed to attain the standard of care of a hypothetical average

policeman. The court would have to decide whether an inspector is to be condemned for failing to display the

acumen of Sherlock Holmes and whether a constable is to be condemned for being as obtuse as Dr.

Watson. The plaintiff will presumably seek evidence, for what it is worth, from retired police inspectors, who

would be asked whether they would have been misled by the hoaxer, and whether they would have identified

Sutcliffe at an earlier stage. At the end of the day the court might or might not find that there had been

negligence by one or more members of the police force. But that finding would not help anybody or punish

anybody.

It may be, and we all hope that the lessons of the Yorkshire Ripper case have been learned, that the

methods of handling information and handling the press have been improved, and that co-operation between

different police forces is now more highly organised. The present action would not serve any useful purpose

in that regard. The present action could not consider whether the training of the West Yorkshire police force

[1989] A.C. 53 Page 65

is sufficiently thorough, whether the selection of candidates for appointment or promotion is defective,

whether rates of pay are sufficient to attract recruits of the required calibre, whether financial restrictions

prevent the provision of modern equipment and facilities, or whether the Yorkshire police force is clever

enough and if not, what can and ought to be done about it. The present action could only investigate whether

an individual member of the police force conscientiously carrying out his duty was negligent when he was

bemused by contradictory information or overlooked significant information or failed to draw inferences which

later appeared to be obvious. That kind of investigation would not achieve the object which Mrs. Hill desires.

The efficiency of a police force can only be investigated by an inquiry instituted by the national or local

authorities which are responsible to the electorate for that efficiency.

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Moreover, if this action lies, every citizen will be able to require the court to investigate the performance of

every policeman. If the policeman concentrates on one crime, he may be accused of neglecting others. If the

policeman does not arrest on suspicion a suspect with previous convictions, the police force may be held

liable for subsequent crimes. The threat of litigation against a police force would not make a policeman more

efficient. The necessity for defending proceedings, successfully or unsuccessfully, would distract the

policeman from his duties.

This action is in my opinion misconceived and will do more harm than good. A policeman is a servant of the

public and is liable to be dismissed for incompetence. A police force serves the public and the elected

representatives of the public must ensure that the public get the police force they deserve. It may be that the

West Yorkshire police force was in 1980 in some respects better and in some respects worse than the public

deserve. An action for damages for alleged acts of negligence by individual police officers in 1980 could not

determine whether and in what respects the West Yorkshire police force can be improved in 1988. I would

dismiss the appeal.

LORD OLIVER OF AYLMERTON. My Lords, I have had the advantage of reading in draft the speech

prepared by my noble and learned friend Lord Keith of Kinkel. I agree that the appeal should be dismissed

for the reasons which he has given.

LORD GOFF OF CHIEVELEY. My Lords, I have had the advantage of reading in draft the speech of my

noble and learned friend Lord Keith of Kinkel. I agree with it and for the reasons he gives I would dismiss the

appeal.

Appeal dismissed.

Respondent's costs to be paid out of legal aid fund pursuant to section 13 of Legal Aid Act 1974.

Yorkshire County Council.

C. T. B.

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*605 Caparo Industries Plc. Respondents v Dickman and Others

Appellants

House of Lords

8 February 1990

[1990] 2 W.L.R. 358

[1990] 2 A.C. 605

Lord Bridge of Harwich , Lord Roskill , Lord Ackner , Lord Oliver of Aylmerton and Lord

Jauncey of Tullichettle

1989 Nov. 16, 20, 22, 23, 27, 28; 1990 Feb. 8

Negligence—Duty of care to whom?—Auditor—Appointment by company to audit and certify

company's accounts—Statutory duty to make report to shareholders—Another company making

take—over bid by initial purchase of shares—Claim that subsequent completion of take—over by

purchase of total issued shares made in reliance on negligently made audit—Whether auditor

owing duty of care to shareholders—Whether duty owed to non—shareholding investor—

Companies Act 1985 (c. 6), ss. 236(1)(2), 237(1)

The plaintiffs, a public limited company, which had accomplished the take-over of F. Plc.,

brought an action against its directors alleging fraudulent misrepresentation and against its

auditors claiming that they were negligent in carrying out the audit and making their report,

which they were required to do within the terms of *606 sections 236 and 237 of the

Companies Act1985 . In the statement of claim the plaintiffs alleged that they had begun

purchasing shares in F. Plc. a few days before the annual accounts had been published to

shareholders, that in reliance on those accounts they made further purchases of shares so

as to take over the company, and that the auditors owed both shareholders and potential

investors a duty of care in respect of the certification of the accounts and should have known

that as F. Plc.'s profits were not as high as projected and its share price had fallen

significantly, that it was susceptible to a take-over bid and that reliance on the accuracy of

the accounts would be placed by any potential bidder such as the plaintiffs. On the trial of a

preliminary issue against the auditors, on the facts as alleged, the judge determined that

the auditors did not owe the plaintiffs a duty of care at common law either as a shareholder

of F. Plc. or as an investor holding no shares. On appeal by the plaintiffs the Court of Appeal,

by a majority, held that a duty of care was owed to the plaintiffs as shareholders but not as

investors.

On appeal by the auditors and cross-appeal by the plaintiffs: -

Held, allowing the appeal and dismissing the cross-appeal, that liability for economic loss

due to negligent mis-statement was confined to cases where the statement or advice had

been given to a known recipient for a specific purpose of which the maker was aware and

upon which the recipient had relied and acted to his detriment; that since the purpose of the

statutory requirement for an audit of public companies under the Act of 1985 was the making

of a report to enable shareholders to exercise their class rights in general meeting and did

not extend to the provision of information to assist shareholders in the making of decisions

as to future investment in the company, and since, additionally, there was no reason in

policy or principle why auditors should be deemed to have a special relationship with non-

shareholders contemplating investment in the company in reliance on the published

accounts, even when the affairs of the company were known to be such as to render it

susceptible to an attempted take-over, the auditors had not owed any duty of care to the

plaintiffs in respect of their purchase of F. Plc.'s shares (post, pp. 621D-G, 623D, 626C-E, F

- 627D, E-G, 628H - 629A, E, 631E-G, 638C-E, 649H - 650C, 654B-F, 658F-G, 661H - 662F).

Page 15

Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465 , H.L.(E.) and Smith v.

Eric S. Bush [1990] 1 A.C. 831 , H.L.(E.) applied.

Dicta of Denning L.J. in Candler v. Crane, Christmas & Co. [1951] 2 K.B. 164 , 179-182 and

Al Saudi Banque v. Clarke Pixley [1990] Ch. 313 approved.

Scott Group Ltd. v. McFarlane [1978] N.Z.L.R. 553 considered.

JEB Fasteners Ltd. v. Marks, Bloom & Co. [1981] 3 All E.R. 289 and Twomax Ltd. v. Dickson,

McFarlane & Robinson, 1982 S.C. 113 distinguished.

Per Lord Bridge of Harwich, Lord Roskill, Lord Ackner and Lord Oliver of Aylmerton. Whilst

recognising the importance of the underlying general principles common to the whole field

of negligence, the law has now moved in the direction of attaching greater significance to

the more traditional categorisation of distinct and recognisable situations as guides to the

existence, the scope and the limits of the varied duties of *607 care which the law imposes

(post, pp. 618C-D, 628D-F, 629E, 633E-G, 635B-C).

Dicta of Brennan J. in Sutherland Shire Council v. Heyman (1985) 60 A.L.R. 1 , 43-44

considered.

Decision of the Court of Appeal [1989] Q.B. 653; [1989] 2 W.L.R. 316; [1989] 1 All E.R. 798

reversed in part.

LORD BRIDGE OF HARWICH.

[…]In determining the existence and scope of the duty of care which one person may owe to

another in the infinitely varied circumstances of human relationships there has for long been a

tension between two different approaches. Traditionally the law finds the existence of the duty

in different specific situations each exhibiting its own particular characteristics. In this way the

law has identified a wide variety of duty situations, all falling within the ambit of the tort of

negligence, but sufficiently distinct to require separate definition of the essential ingredients by

which the existence of the duty is to be recognised. Commenting upon the outcome of this

traditional approach, Lord Atkin, in his seminal speech in Donoghue v. Stevenson [1932] A.C.

562 , 579-580, observed:

'The result is that the courts have been engaged upon an elaborate classification of

duties as they exist in respect of property, whether real or personal, with further

divisions as to ownership, occupation or control, and distinctions based on the

particular relations of the one side or the other, whether manufacturer, salesman or

landlord, customer, tenant, stranger, and so on. In this way it can be ascertained at

any time whether the law recognises a duty, but only where the case can be referred

to some particular species which has been examined and classified. and yet the duty

which is common to all the cases where liability is established must logically be based

upon some element common to the cases where it is found to exist.'

It is this last sentence which signifies the introduction of the more modern approach of seeking

a single general principle which may be applied in all circumstances to determine the existence

of a duty of care. Yet Lord Atkin himself sounds the appropriate note of caution by adding, at p.

580:

'To seek a complete logical definition of the general principle is probably to go beyond

the function of the judge, for the more general the definition the more likely it is to

omit essentials or to introduce non-essentials.'

*617 Lord Reid gave a large impetus to the modern approach in Dorset Yacht Co. Ltd. v. Home

Office [1970] A.C. 1004 , 1026-1027, where he said:

Page 16

'In later years there has been a steady trend towards regarding the law of negligence

as depending on principle so that, when a new point emerges, one should ask not

whether it is covered by authority but whether recognised principles apply to it.

Donoghue v. Stevenson [1932] A.C. 562 may be regarded as a milestone, and the

well known passage in Lord Atkin's speech should I think be regarded as a statement

of principle. It is not to be treated as if it were a statutory definition. It will require

qualification in new circumstances. But I think that the time has come when we can

and should say that it ought to apply unless there is some justification or valid

explanation for its exclusion.'

The most comprehensive attempt to articulate a single general principle is reached in the well

known passage from the speech of Lord Wilberforce in Anns v. Merton London Borough Council

[1978] A.C. 728 , 751-752:

'Through the trilogy of cases in this House - Donoghue v. Stevenson [1932] A.C. 562

, Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465 , and Dorset

Yacht Co. Ltd. v. Home Office [1970] A.C. 1004 , the position has now been reached

that in order to establish that a duty of care arises in a particular situation, it is not

necessary to bring the facts of that situation within those of previous situations in

which a duty of care has been held to exist. Rather the question has to be approached

in two stages. First one has to ask whether, as between the alleged wrongdoer and

the person who has suffered damage there is a sufficient relationship of proximity or

neighbourhood such that, in the reasonable contemÍplation of the former,

carelessness on his part may be likely to cause damage to the latter - in which case

a prima facie duty of care arises. Secondly, if the first question is answered

affirmatively, it is necessary to consider whether there are any considerations which

ought to negative, or to reduce or limit the scope of the duty or the class of person

to whom it is owed or the damages to which a breach of it may give rise: see Dorset

Yacht case [1970] A.C. 1004 per Lord Reid at p. 1027.'

But since the Anns case a series of decisions of the Privy Council and of your Lordships' House,

notably in judgments and speeches delivered by Lord Keith of Kinkel, have emphasised the

inability of any single general principle to provide a practical test which can be applied to every

situation to determine whether a duty of care is owed and, if so, what is its scope: see Governors

of Peabody Donation Fund v. Sir Lindsay Parkinson & Co. Ltd. [1985] A.C. 210 , 239f-241c; Yuen

Kun Yeu v. Attorney-General of Hong Kong [1988] A.C. 175 , 190e-194f; Rowling v. Takaro

Properties Ltd. [1988] A.C. 473 , 501d-g; Hill v. Chief Constable of West Yorkshire [1989] A.C.

53 , 60b-d. What emerges is that, in addition to the foreseeability of damage, necessary

ingredients in any situation giving rise to a duty of care are that there *618 should exist

between the party owing the duty and the party to whom it is owed a relationship characterised

by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which

the court considers it fair, just and reasonable that the law should impose a duty of a given

scope upon the one party for the benefit of the other. But it is implicit in the passages referred

to that the concepts of proximity and fairness embodied in these additional ingredients are not

susceptible of any such precise definition as would be necessary to give them utility as practical

tests, but amount in effect to little more than convenient labels to attach to the features of

different specific situations which, on a detailed examination of all the circumstances, the law

recognises pragmatically as giving rise to a duty of care of a given scope. Whilst recognising, of

course, the importance of the underlying general principles common to the whole field of

negligence, I think the law has now moved in the direction of attaching greater significance to

the more traditional categorisation of distinct and recognisable situations as guides to the

Page 17

existence, the scope and the limits of the varied duties of care which the law imposes. We must

now, I think, recognise the wisdom of the words of Brennan J. in the High Court of Australia in

Sutherland Shire Council v. Heyman (1985) 60 A.L.R. 1 , 43-44, where he said:

'It is preferable, in my view, that the law should develop novel categories of

negligence incrementally and by analogy with established categories, rather than by

a massive extension of a prima facie duty of care restrained only by indefinable

'considerations which ought to negative, or to reduce or limit the scope of the duty

or the class of person to whom it is owed.''

One of the most important distinctions always to be observed lies in the law's essentially

different approach to the different kinds of damage which one party may have suffered in

consequence of the acts or omissions of another. It is one thing to owe a duty of care to avoid

causing injury to the person or property of others. It is quite another to avoid causing others to

suffer purely economic loss. […]

LORD ROSKILL.

[…]

I agree with your Lordships that it has now to be accepted that there is no simple formula or

touchstone to which recourse can be had in order to provide in every case a ready answer to the

questions whether, given certain facts, the law will or will not impose liability for negligence or

in cases where such liability can be shown to exist, determine the extent of that liability. Phrases

such as 'foreseeability,' 'proximity,' 'neighbourhood,' 'just and reasonable,' 'fairness,' 'voluntary

acceptance of risk,' or 'voluntary assumption of responsibility' will be found used from time to

time in the different cases. But, as your Lordships have said, such phrases are not precise

definitions. At best they are but labels or phrases descriptive of the very different factual

situations which can exist in particular cases and which must be carefully examined in each case

before it can be pragmatically determined whether a duty of care exists and, if so, what is the

scope and extent of that duty. If this conclusion involves a return to the traditional categorisation

of cases as pointing to the existence and scope of any duty of care, as my noble and learned

friend Lord Bridge of Harwich, suggests, I think this is infinitely preferable to recourse to

somewhat wide generalisations which leave their practical application matters of difficulty and

uncertainty. This conclusion finds strong support from the judgment of Brennan J. in Sutherland

Shire Council v. Heyman, 60 A.L.R. 1 , 43-44 in the High Court of Australia in the passage cited

by my noble and learned friends. […]

LORD ACKNER.

My Lords, I have had the advantage of reading the speeches of Lord Bridge of Harwich, Lord

Roskill, Lord Oliver of Aylmerton and Lord Jauncey of Tullichettle and for the reasons they give

I, too, would allow this appeal and dismiss the cross-appeal.

LORD OLIVER OF AYLMERTON.

[…]

The question is, I think, one of some importance when one comes to consider the existence of

that essential relationship between the appellants and the respondent to which, in any discussion

of the ingredients of the tort of negligence, there is accorded the description 'proximity,' for it is

now clear from a series of decisions in this House that, at least so far as concerns the law of the

United Kingdom, the duty of care in tort depends not solely upon the existence of the essential

ingredient of the foreseeability of damage to the plaintiff but upon its coincidence with a further

Page 18

ingredient to which has been attached the label 'proximity' and which was described by Lord

Atkin in the course of his speech in Donoghue v. Stevenson [1932] A.C. 562 , 581 as:

'such close and direct relations that the act complained of directly affects a person

whom the person alleged to be bound to take care would know would be directly

affected by his careless act.'

It must be remembered, however, that Lord Atkin was using these words in the context of loss

caused by physical damage where the existence of the nexus between the careless defendant

and the injured plaintiff can rarely give rise to any difficulty. To adopt the words of Bingham L.J.

in the instant case [1989] Q.B. 653 , 686:

'It is enough that the plaintiff chances to be (out of the whole world) the person with

whom the defendant collided or who purchased the offending ginger beer.'

[…]

Thus the postulate of a simple duty to avoid any harm that is, with hindsight, reasonably capable

of being foreseen becomes untenable without the imposition of some intelligible limits to keep

the law of negligence within the bounds of common sense and practicality. Those limits have

been found by the requirement of what has been called a 'relationship of proximity' between

plaintiff and defendant and by the imposition of a further requirement that the attachment of

liability for harm which has occurred be 'just and reasonable.' But although the cases in which

the courts have imposed or withheld liability are capable of an approximate categorisation, one

looks in vain for some common denominator by which the existence of the essential relationship

can be tested. Indeed it is difficult to resist a conclusion that what have been treated as three

separate requirements are, at least in most cases, in fact merely facets of the same thing, for in

some cases the degree of foreseeability is such that it is from that alone that the requisite

proximity can be deduced, whilst in others the absence of that essential relationship can most

rationally be attributed simply to the court's view that it would not be fair and reasonable to hold

the defendant responsible. 'Proximity' is, no doubt, a convenient expression so long as it is

realised that it is no more than a label which embraces not a definable concept but merely a

description of circumstances from which, pragmatically, the courts conclude that a duty of care

exists.

There are, of course, cases where, in any ordinary meaning of the words, a relationship of

proximity (in the literal sense of 'closeness') exists but where the law, whilst recognising the fact

of the relationship, nevertheless denies a remedy to the injured party on the ground of public

policy. Rondel v. Worsley [1969] 1 A.C. 191 was such a case, as was Hill v. Chief Constable of

West Yorkshire [1989] A.C. 53 , so far as concerns the alternative ground of that decision. But

such cases do nothing to assist in the identification of those features from which the law will

deduce the essential relationship on which liability depends and, for my part, I think that it has

to be recognised that to search for any single formula which will serve as a general test of liability

is to pursue a will-o'-the wisp. The fact is that once one discards, as it is now clear that one

must, the concept of foreseeability of harm as the single exclusive test - even a prima facie test

- of the existence of the duty of care, the attempt to state some general principle which will

determine liability in an infinite variety of circumstances serves not to clarify the law but merely

to bedevil its development in a way which corresponds with practicality and common sense. In

Sutherland Shire Council v. Heyman, 60 A.L.R. 1 , 43-44, Brennan J. in the course of a

penetrating analysis, observed:

'Of course, if foreseeability of injury to another were the exhaustive criterion of a

prima facie duty to act to prevent the occurrence of that injury, it would be essential

to introduce some kind of restrictive qualification - perhaps a qualification of the kind

stated in the second stage of the general proposition in Anns [1978] A.C. 728 . I am

Page 19

unable to accept that approach. It is preferable, in my view, that the law should

develop novel categories of negligence *634 incrementally and by analogy with

established categories, rather than by a massive extension of a prima facie duty of

care restrained only by indefinable 'considerations which ought to negative, or to

reduce or limit the scope of the duty or the class of person to whom it is owed.''

[…]

LORD JAUNCEY OF TULLICHETTLE.

My Lords, it no longer requires a detailed citation of authority to vouch the well-established

proposition that a negligent statement may, in certain circumstances, render the maker thereof

liable for economic loss occasioned thereby to another. It is sufficient to mention Cann v. Willson

(1888) 39 Ch.D. 39 , the dissenting judgment of Denning L.J. in Candler v. Crane, Christmas &

Co. [1951] 2 K.B. 164 , and two cases in this House, Hedley Byrne & Co. Ltd v. Heller & Partners

Ltd. [1964] A.C. 465 and Smith v. Eric S. Bush [1990] 1 A.C. 831 . Whether liability exists in

any particular case will depend upon whether the maker of the statement owes a duty of care

to the person who has suffered loss. In this connection I cannot do better than quote the words

of Lord Keith of Kinkel in Governors of Peabody Donation Fund v. Sir Lindsay Parkinson & Co.

Ltd. [1985] A.C. 210 , 240-241: *655

'The true question in each case is whether the particular defendant owed to the

particular plaintiff a duty of care having the scope which is contended for, and

whether he was in breach of that duty with consequent loss to the plaintiff. A

relationship of proximity in Lord Atkin's sense must exist before any duty of care can

arise, but the scope of the duty must depend on all the circumstances of the case. .

. . So in determining whether or not a duty of care of particular scope was incumbent

upon a defendant it is material to take into consideration whether it is just and

reasonable that it should be so.'

The relationship of proximity to which Lord Keith referred is not one which is created solely by

the foreseeability of harm resulting from carelessness in the statement, but is one in which some

further ingredient importing proximity is present. Thus in Hill v. Chief Constable of West

Yorkshire [1989] A.C. 53 , 60 Lord Keith said:

'It has been said almost too frequently to require repetition that foreseeability of

likely harm is not in itself a sufficient test of liability in negligence. Some further

ingredient is invariably needed to establish the requisite proximity of relationship

between plaintiff and defendant, and all the circumstances of the case must be

carefully considered and analysed in order to ascertain whether such ingredient is

present.'

[…]

Page 20

*36 Kent v Griffiths and Others

Court of Appeal

3 February 2000

[2001] Q.B. 36

Lord Woolf , MR Aldous and Laws LJJ

2000 Jan 17, 18; Feb 3

Negligence—Duty of care to whom?—Ambulance service—Claimant suffering asthma attack—

Doctor telephoning 999 and ambulance service agreeing to send ambulance immediately—

Ambulance failing to arrive within reasonable time—No satisfactory explanation for delay—

Claimant suffering respiratory arrest due to delay—Whether ambulance service liable in

negligence

In 1991 the claimant suffered an asthma attack at home. At 4.25 pm her doctor telephoned

999 and asked for an ambulance to take the claimant to hospital immediately. Despite two

further telephone calls the ambulance did not arrive until 5.05 pm Shortly before arriving at

the hospital the claimant suffered a respiratory arrest which caused brain damage. The

record prepared by a member of the ambulance crew was falsified to show the time of arrival

at the claimant's home as 4.47 pm. On the claimant's action for damages for personal injury

from the ambulance service, the judge found that the ambulance had not arrived at the

claimant's home within a reasonable time, that no satisfactory explanation had been given

for the delay and that if the ambulance had arrived within a reasonable time there was a

high probability that the respiratory arrest would have been averted. The judge held that, in

the circumstances, the ambulance service had owed a duty of care to the claimant which it

had breached and that her claim for damages succeeded.

On appeal by the ambulance service—

Held, dismissing the appeal, that the ambulance service had had a public law duty to provide

an ambulance for the claimant since, on the facts, its discretion could not rationally have

been exercised in any other way; that, in those circumstances, it was not appropriate to

regard the ambulance service and its employees as volunteers whose only common law duty

when responding to the 999 telephone call was not to add to the damage already suffered;

that, in considering whether public policy grounds precluded the existence of a duty of care,

the ambulance service should be regarded as part of the health service, where a duty of care

to patients normally existed, rather than as providing services equivalent to those rendered

by the police or the fire service when responding to a 999 telephone call; that the ambulance

had been called for the claimant alone and it was foreseeable that she would suffer further

injuries if its arrival was delayed; that since the resources had been available to provide an

ambulance on which there were no alternative demands there was no reason why it should

not have been provided and an explanation was required to justify a failure to attend within

a reasonable time; and that, accordingly, there were no circumstances which made it unfair,

unreasonable or unjust that a duty of care to the claimant should exist following the

acceptance of the 999 call and there was no reason why there should not be liability when

the arrival of the ambulance was delayed for no good reason (post, pp 45B-C, D-E, 52F-53B,

D-F, 49A-B, E-F).

[…]

APPEAL from Turner J

By amended particulars of claim dated 6 October 1998 the claimant, Tracey Kent, suing by her

sister and next friend, Jennifer Doughty, claimed damages for personal injury from the first and

second defendants, Dr Yvonne Griffiths and Dr Marian Roberts, and from the third defendant,

the London Ambulance Service. On 11 December 1998 the Court of Appeal (Kennedy and

Page 21

Schiemann LJJ and Sir Patrick Russell) dismissed an application by the *38 ambulance service

to strike out the claim. On 16 July 1999 the judge dismissed the claim against the first and

second defendants but allowed the claim against the ambulance service and ordered it to pay

the claimant damages of £362,377.

By a notice of appeal dated 25 August 1999 and with the leave of the judge the ambulance

service appealed on the grounds, inter alia, that the judge had erred in law (1) in finding that it

owed the claimant a duty to despatch an ambulance to her home to turn up at all or some 14

minutes earlier than it did in response to an emergency 999 telephone call; and (2) in

distinguishing Capital & Counties Plc v Hampshire County Council [1997] QB 1004 and

Alexandrou v Oxford [1993] 4 All ER 328 , which established that, when a public authority was

acting as a rescue service and did not create the danger, initial injury or damage, no duty was

owed to the public at large when responding to a 999 telephone call.

The facts are stated in the judgment of Lord Woolf MR.

[…]

Cur. adv. vult.

3 February. The following judgments were handed down. LORD WOOLF MR

1 The issue on this appeal is whether an ambulance service can owe any duty of care to a

member of the public on whose behalf a 999 telephone call is made if, due to carelessness, it

fails to arrive within a reasonable time.

The background

2 The appeal is against a judgment of Turner J [1999] Lloyd's Rep Med 424 given on 16 July

1999 by the third defendant, the London Ambulance Service ("LAS"). The judge awarded the

claimant damages amounting to £362,377. He dismissed the claims against the first and second

defendants, who were the claimant's doctors. The LAS was ordered to pay the claimant's costs

of the action, including the costs incurred by the claimant in respect of the claim against the first

and second defendants, and to indemnify the claimant in respect of her liability in costs to the

first and second defendants. The judge gave the LAS permission to appeal as the case raised a

novel point of law. There is no appeal in relation to the decision as to the dismissal of the claim

against the first and second defendants. There is a cross-appeal by the claimant as to damages.

That cross-appeal is to be heard on a later date.

3 The facts relevant to the issue on this appeal can be stated shortly. They are not in dispute.

They are set out clearly in the judgment.

4 The claimant is an asthmatic. On 16 February 1991 she suffered an asthma attack. The first

defendant attended at her home. At 16.25 the first defendant telephoned the LAS, gave the

claimant's name, address and age and indicated that she was suffering from bronchial asthma

and asked for an ambulance to take her "immediately please" to casualty where she was

*42 expected. The control replied "Okay doctor." By 16.38 the ambulance had not arrived so

the claimant's husband made a second call. The LAS's response was "Yes. They are well on their

way to you ... give them another seven or eight minutes." At 16.54 the first defendant made a

second call as the ambulance had still not arrived. The response was "Well it should be a couple

of minutes." The ambulance did not arrive, as the judge found, until 17.05. The claimant arrived

at the hospital at 17.17.

5 The record prepared by a member of the ambulance crew indicated that the time of arrival at

the claimant's home was not 17.05 but 16.47. The judge found that there had been

contemporary falsification of the records by the member of the ambulance crew. He considered

that he had not been given any satisfactory explanation for the ambulance taking 34 minutes to

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travel 6.5 miles from its base to the claimant's home. The judge was satisfied that the crew

member had "withheld the true reason, whatever it might have been, why it took so long for the

ambulance to reach the claimant's house". The crew member "knew full well just how critical

was going to be the record which he made" of the time of arrival. In the absence of any

reasonable excuse for the delay, the judge was "driven to conclude that the delay was culpable":

[1999] Lloyd's RepMed 424 , 447. The ambulance did not reach the claimant's home within a

reasonable time. It could and should have arrived at the claimant's home at least 14 minutes

sooner than it did. If it had arrived in a reasonable time, as it should have done, there was a

high probability that the respiratory arrest, from which the claimant suffered, would have been

averted. The judge also made criticisms as to the information communicated by the LAS to the

ambulance crew, which would also amount to carelessness, but he did not base his decision on

this additional finding.

6 The doctor gave evidence that if she had been told, when she had first telephoned for the

ambulance, that it would be 40 minutes before it arrived she would have probably asked the

claimant's husband to drive his wife to the hospital. She would have accompanied them.

7 I should set out the views of this very experienced judge as to the general merits of the

claimant's case. He said, at p 453:

"I should have found it offensive to, and inconsistent with, concepts of common

humanity if in circumstances such as the present where there had been an

unreasonable and unexplained delay in providing the service which LAS were in a

position to meet, and had accepted that it would supply an ambulance, the law could

not in its turn provide a remedy to the person whose condition was significantly

exacerbated in consequence."

8 I have already indicated that the issue on this appeal is whether the claimant was owed a

duty of care. Originally in its defence the LAS admitted that it was under a duty to respond.

However, after the decision of this court in Capital & Counties Plc v Hampshire County Council

[1997] QB 1004 (Stuart-Smith, Potter and Judge LJJ) that a fire brigade was not under a common

law duty to answer calls to fires or to take reasonable care to do so, an application was made to

withdraw that admission by way of amendment. An application was also made to strike out the

allegations against the *43 LAS This was based on an allegation that the statement of claim

disclosed no cause of action in so far as it relied upon the delay in responding to the ambulance

call.

9 The application to strike out was dismissed by this court (Kennedy and Schiemann LJJ and Sir

Patrick Russell): Kent v London Ambulance Service [1999] PIQR P192. The court considered that

the Capital & Counties case [1997] QB 1004 was arguably distinguishable upon the grounds that

the duty to fight fires remains throughout a duty owed to the public at large. By contrast, once

a call to an ambulance service has been accepted, the service is dealing with a named individual

upon whom the duty becomes focused. Furthermore, if an ambulance service is called and agrees

to attend the patient, those caring for the patient normally abandon any attempt to find an

alternative means of transport to the hospital.

The ambulance service's case

10 Mr Munby advanced a powerful argument on the part of the LAS He relies on two primary

submissions. The first is that the only duty which in private law the emergency services (including

the ambulance services) owe to an individual member of the public is, by their own acts, not

negligently to create an additional danger which causes injury to the individual to whose

assistance they have been called. In this respect the position of the LAS in private law is no

different from that of a volunteer who goes to the rescue of a person in difficulties. In particular

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Page 23

the LAS is under no liability to a member of the public if it refuses to respond to a 999 call or

does so but does not arrive within a reasonable time. The position is indistinguishable from the

Capital & Counties case, to which I have already referred, in relation to fire brigades, the decision

of this court in Alexandrou v Oxford [1993] 4 All ER 328 as to the police when responding to a

999 call and OLL Ltd v Secretary of State for Transport [1997] 3 All ER 897 in relation to the

coastguards when making a rescue at sea.

11 The second primary submission is that negligence in the performance of a statutory duty or

in the exercise of a power could only in the circumstances of this case give rise to liability if the

three requirements laid down in Caparo Industries Plc v Dickman [1990] 2 AC 605 for

establishing a free-standing common law duty are met. It is accepted that two of the

requirements, namely that of foreseeability and of it being just, fair and reasonable for there to

be a duty of care, are met. What is contended is that the additional requirement, that there

should be a relationship of sufficient proximity between the claimant and the LAS, does not exist.

Mr Munby relies in particular on X (Minors) v Bedfordshire County Council [1995] 2 AC 633 .

12 Although Mr Munby advances separate submissions, both submissions require an

understanding of the reasons given for the decisions in Alexandrou's case [1993] 4 All ER 328

and the Capital & Counties case [1997] QB 1004 . Both cases are binding on this court and

unless they can be distinguished this appeal has to be allowed. *44 The claimant's case

13 Miss Gumbel, in her helpful argument, relied on three unchallenged findings of the judge. (1)

The requisite degree of urgency was communicated to the central ambulance control. (2) The

LAS was in a position to accept the request and accepted that it would supply the ambulance in

accordance with the request. (3) The provision of the ambulance was unduly delayed.

14 These facts, she submitted, were sufficient to establish proximity. She contended that, this

being the case, Turner J's decision was in accordance with previous authority. She submitted

that there are distinctions between this case and the Capital & Counties case. First of all, she

relied on the difference, apart from the nature of the service that the LAS provides, between the

facts of this case and the cases relied on by Mr Munby. Here, only a single individual was involved

who made a specific request that was accepted and therefore relied on. This was not a case of

general reliance, but specific reliance. It was foreseeable that the claimant could suffer personal

injuries if there was delay. The nature of the damage was important. There was a contrast with

a fire or a crime, where an unlimited number of members of the public could be affected and the

damage could be to property or only economic. In its statutory context the ambulance service is

more properly described as part of the National Health Service than as a rescue service. As part

of the health service it should owe the same duty to members of the public as other parts of the

health service. The LAS had not been responsible for the claimant's asthma but it had caused

the respiratory arrest and to this extent the LAS was the author of additional damage. There was

no question of any conflict as to whom the duty of care was owed, if there was a duty.

The authorities on volunteer rescuers

15 Mr Munby drew our attention to two lines of authorities on volunteers. The first starts with

the leading case of East Suffolk Rivers Catchment Board v Kent [1941] AC 74 , 84-85, 87, 95,

102 and 104. It deals specifically with the situation where a claim is against a statutory body in

relation to the performance of its statutory functions where the statute does not create any duty

of care on which the claimant is entitled to rely. As to such a situation Lord Romer made a

statement with which Lord Porter agreed. He said, at p 102:

"Where a statutory authority is entrusted with a mere power it cannot be made liable

for any damage sustained by a member of the public by reason of a failure to exercise

that power. If in the exercise of their discretion they embark upon an execution of

the power, the only duty they owe to any member of the public is not thereby to add

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to the damages that he would have suffered had they done nothing. So long as they

exercise their discretion honestly, it is for them to determine the method by which

and the time within which and the time during which the power shall be exercised;

and they cannot be made liable, except to the extent that I have just mentioned, for

any damage that would have been avoided had they exercised their discretion in a

more reasonable way."

*45

16 Mr Munby also relied on Dorset Yacht Co Ltd v Home Office [1970] AC 1004 and the Capital

& Counties case [1997] QB 1004 and the other cases that were cited in that case for the

proposition I have quoted. However, while the proposition is acceptable, it only applies to this

case if the LAS did not owe the usual form of private duty of care to the claimant. I refer to the

usual form of duty because, as the citation makes clear, even when the responsibility is more

limited there is still a residual responsibility.

17 In addition, it is argued that in this case the LAS did "add to the damage that [the claimant]

would have suffered had they done nothing". But for the acceptance of the 999 call the claimant

would have been driven to the hospital and would have arrived prior to her respiratory arrest.

Furthermore, although I do not regard this as altering the duty that the LAS owed, even if the

LAS was not under any private law duty, in this case it would certainly be under a public duty to

exercise its discretion to provide an ambulance. This is because on the evidence there was no

rational reason which would justify the LAS's discretion being exercised in any other manner.

18 The other line of authorities is adequately reflected in the decision of the Canadian courts

culminating in the Supreme Court's decision in The Ogopogo [1971] 2 Lloyd's Rep 410 . They

establish that the common law does not require a member of the public to act as would the Good

Samaritan. If he does so, however, the law does protect him from being liable in damages except

to the extent that his own acts cause damage beyond that which the claimant would have

suffered if he had not intervened.

19 While I accept unhesitatingly the good sense of this line of authority, I have difficulty in

applying it to the present situation. The LAS was under at least a public law duty for the reason

I have given already. The provision of ambulances is its statutory function. The LAS and its crews

are paid out of public moneys to provide their services. It is wholly inappropriate to regard the

LAS and its employees as volunteers.

Alexandrou v Oxford

20 In Alexandrou v Oxford [1993] 4 All ER 328 the defendant was a chief constable who had

been sued by Mr Alexandrou after the latter's clothing shop was burgled. The burglar alarm had

been activated, but, when the police officers attended, they did not properly inspect the rear of

the premises. The judge held that the chief constable was liable to Mr Alexandrou because, if

the inspection had been carried out properly, the theft would have been prevented. The chief

constable appealed to this court. This court allowed the appeal. There were two grounds for the

court doing so. The first ground was that the relationship between Mr Alexandrou and the police

was insufficient to create a duty of care. Glidewell LJ stated in the principal judgment of the

court, with which the other members of the court agreed, at p 334:

"It is not sufficient for a plaintiff, who seeks to establish that a defendant owed him

a duty to take reasonable care to prevent loss being caused to the plaintiff by the

activities of another person, simply to prove that if the defendant did not exercise

reasonable care it was foreseeable that the plaintiff would suffer the loss. It is

necessary for the plaintiff also *46 to show that in the circumstances of the

particular case he stands in a special relationship to the defendant, from which the

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duty of care arose: see per Lord Wilberforce in McLoughlin v O'Brian [1983] 1 AC

410 , 420: 'That foreseeability does not of itself, and automatically, lead to a duty

of care is, I think, clear.'"

21 Later Glidewell LJ added, at p 338:

"It is possible to envisage an agreement between an occupier of a property protected

by a burglar alarm and the police which would impose a contractual liability on the

police. That is not, however, the situation in this case. The communication with the

police in this case was by a 999 telephone call, followed by a recorded message. If

as a result of that communication the police came under a duty of care to the plaintiff,

it must follow that they would be under a similar duty to any person who informs

them, whether by 999 call or in some other way, that a burglary, or indeed any

crime, against himself or his property is being committed or is about to be

committed. So in my view if there is a duty of care it is owed to a wider group than

those to whom the judge referred. It is owed to all members of the public who give

information of a suspected crime against themselves or their property. It follows,

therefore, that on the facts of this case it is my opinion that there was no such special

relationship between the plaintiff and the police as was present in the Dorset Yacht

case [1970] AC 1004 ." (Emphasis added.)

22 Having come to the conclusion that the relationship was not "special", in case he was wrong,

Glidewell LJ went on to consider whether as a matter of general policy the police should be under

such a duty. Here he attached importance to the well known passage from Lord Keith of Kinkel's

speech in Hill v Chief Constable of West Yorkshire [1989] AC 53 , 63-64. In that passage of his

speech Lord Keith pointed out that there are some situations where the imposition of a duty of

care will result in the exercise of higher standards of care in the carrying out of various activities.

However this was not true of police activities. It could result in a "detrimentally defensive frame

of mind". In addition Lord Keith considered that police investigations must frequently involve a

variety of decisions on matters of policy and discretion as to which particular line of inquiry it

was most advantageous to pursue and as to what was the most advantageous way to deploy

the available resources. Such decisions were not regarded by the courts as appropriate to be

called into question. Both lines of reasoning of Lord Keith caused Glidewell LJ to express the view

that it would not be appropriate for there to be a duty of care.

23 Slade LJ, in giving his additional reasons for allowing the appeal, stated [1993] 4 All ER 328

, 344:

"it is unthinkable that the police should be exposed to potential actions for negligence

at the suit of every disappointed or dissatisfied maker of a 999 call. I can see no

sufficient grounds for holding that the police owed a duty of care to this plaintiff on

or after receipt of the 999 call ... if they would not have owed a duty of care to

ordinary members of the public who made a similar call."

*47

24 It is to be noted that, in relation to 999 calls to the police, the law which is laid down in

Alexandrou v Oxford and Hill's case [1989] AC 53 had at least two important strands. The first

is that the primary duty which the police are under is to the public at large to prevent crime. The

second is that to impose a liability on the police for the benefit of an individual member of the

public to prevent a crime could interfere with the performance of that primary duty. Issues will

arise when difficult policy decisions have to be made involving conflicts between the interests of

different members or sections of the public and those situations should not be made more difficult

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by possible litigation having to be taken into account.

25 There are, however, a great variety of situations where the police provide assistance to the

public because they decide to do so. In the well known case of Haynes v Harwood [1935] 1 KB

146 , involving a policeman going to the rescue by stopping a bolting horse, Maugham LJ said,

at pp 161-162:

"In my opinion the police constable was not in any true sense a volunteer. It is true

that he was under no positive legal duty to run out into the street and at the risk of

his life to stop two galloping horses; and I quite accept that nobody would have

thought of reprimanding him if he had done nothing. It is also true that the primary

duty of the police is the prevention of crime and the arrest of criminals; but that is

only a part of the duties of the police in London. There is a general duty to protect

the life and property of the inhabitants; there is a discretionary duty to direct the

traffic, to help blind and infirm people to cross the road, and to direct people who

have lost their way."

26 The obligations of the police are rooted in the common law and not statute: they evolve to

meet the current needs of society. I emphasised in my quotation from the judgment of Glidewell

LJ that he was careful to refer to the facts of the appeal which the court was considering. I

consider he was right to limit his remarks in this way. The reasoning of the judgments in that

case cannot be applied sensibly to the police officer helping pedestrians 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.

27 Slade LJ used the shorthand of referring to 999 calls. However, it would amount to a

misunderstanding of his approach to attach any magic to the fact that the response is to a 999

call. It is the nature of and the circumstances in which the assistance is provided and required

which is important. The issue which can be important is whether it is an urgent call made by

phone or otherwise for the assistance of the police involving conflicting priorities or difficult

decisions as to the best way to protect the public against crime, or whether it is a routine task

which involves no policy or resource issues. In the latter situation a duty can readily be inferred.

In the former situation it is unlikely that it will exist. In between there are a spectrum of different

situations which will have to be judged on their facts. *48 Capital & Counties Plc v Hampshire

County Council

28 The decision in Alexandrou v Oxford [1993] 4 All ER 328 was applied in Capital & Counties

Plc v Hampshire County Council [1997] QB 1004 . This was after the court had examined in

detail a large number of authorities and in the course of argument had been referred to further

authorities. Stuart-Smith LJ gave the judgment of the court. It dealt with three different sets of

proceedings. In each case, there had been attendance at premises as a result of a 999 call

because of a fire. The court held that the relationship between the owner or occupier of the

premises and the fire brigade was not sufficiently proximate so as to impose a duty of care on

the fire brigade to protect the property, simply based on the fire brigade's attendance at the site

of a fire and involvement in fighting the fire. However, if the fire brigade by their own actions

increased the risk of danger they would be liable for negligence in respect of the damage which

was caused by the increased risk, unless damage would have occurred in any event.

29 In the judgment, at p 1026, Stuart-Smith LJ points out that, although there is not an express

duty imposed on the fire services or an express power granted to the fire services to fight fires

by the Fire Services Act 1947 , there is an implicit power. He then considered "whether, in the

absence of a statutory duty, a statutory power to act can be converted into a common law duty

to exercise the power". In that connection he referred to the decision of the House of Lords in

Stovin v Wise [1996] AC 923 and in particular the speech of Lord Hoffmann in that case. He

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Page 27

rejected a suggestion that a claimant in that case was entitled to rely on the doctrine of general

reliance as giving rise to a duty to exercise a statutory power. Then, applying Alexandrou v

Oxford [1993] 4 All ER 328 , he summarised the court's conclusion in these words [1997] QB

1004 , 1030:

"In our judgment the fire brigade are not under a common law duty to answer the

call for help, and are not under a duty to take care to do so. If, therefore, they fail

to turn up, or fail to turn up in time, because they have carelessly misunderstood

the message, got lost on the way or run into a tree, they are not liable."

30 Stuart-Smith LJ went on to consider what was the situation once the fire brigade had arrived

at the fire ground and started to fight the fire. As to the submission that the question of whether

there was a private law duty should be approached by applying Lord Bridge of Harwich's threefold

test in Caparo Industries Plc v Dickman [1990] 2 AC 605 , 617-618 of (1) foreseeability, (2)

proximity and (3) legal policy, he said [1997] QB 1004 , 1031:

"The peculiarity of fire brigades, together with other rescue services, such as

ambulance or coastal rescue and protective services such as the police, is that they

do not as a rule create the danger which causes injury to the plaintiff or loss to his

property. For the most part they act in the context of a danger already created and

damage already caused, whether by the forces of nature, or the acts of some third

party or even of the plaintiff himself, and whether those acts are criminal, negligent

or non-culpable."

*49

31 Stuart-Smith LJ then distinguished the situation where the "rescue/protective service itself

by negligence creates the danger" and indicated that the claimant in that situation could recover.

He pointed out that in the cases where the claimant had succeeded, with one possible exception,

there had always been a new or different danger created. To establish liability in such a situation,

it was possible to rely upon the decision of the House of Lords in East Suffolk Rivers Catchment

Board v Kent [1941] AC 74 .

32 Stuart-Smith LJ then considered the alternative ground relied upon, based on a contention

that proximity will exist where some person possessing "special skill undertakes, quite

irrespective of contract, to apply that skill for another person who relies on such skill, and there

is direct and substantial reliance by the plaintiff on the defendant's skill". As to this submission

Stuart-Smith LJ acknowledged [1997] QB 1004 , 1034 that:

"As a general rule a sufficient relationship of proximity will exist when someone

possessed of special skill undertakes to apply that skill for the assistance of another

person who relies upon such skill and there is direct and substantial reliance by the

plaintiff on the defendant's skill."

33 If a doctor volunteers his assistance, "his only duty as a matter of law is not to make the

victim's condition worse": p 1035. He added that "the fire brigade's duty is owed to the public

at large to prevent the spread of fire" and that "this may involve a conflict between the interests

of various owners of premises": p 1036. He also concluded that, while there could be exceptional

situations where the conduct of those involved created a relationship of proximity which would

give rise to a duty of care, it did not in the case of the present appeals. The position was that

the fire brigade did not enter into a sufficiently proximate relationship with the owner or occupier

of premises to come under a duty of care "merely by attending at the fire ground and fighting

the fire": p 1038.

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34 However, with regard to the question of public policy, Stuart-Smith LJ indicated that the court

was sympathetic to the argument of the plaintiff. He stated, at p 1044:

"If we had found a sufficient relationship of proximity ... we do not think that we

would have found the arguments for excluding a duty of care on the ground that it

would not be just, fair and reasonable convincing. The analogy with the police

exercising their functions of investigating and suppressing crime is not close. The

floodgates argument is not persuasive; nor is that based on insurance. Many of the

other arguments are equally applicable to other public services, for example, the

National Health Service. We do not think that the principles which underlie those

decisions where immunity has been granted can be sufficiently identified in the case

of fire brigades."

35 It is to be noted that Stuart-Smith LJ recognised that there could be differences between the

approach in cases involving the police and the fire service. I do not regard the fact that he

referred to a common feature of the rescue and protective services meant that he was suggesting

that the position was identical in every case involving those services. I consider that he was

applying established principles to the class of case with which he was *50 concerned. Even in

relation to the appeals which the court was considering, the court came to different decisions on

the facts applying those principles.

36 We were referred to a number of first instance decisions in which the principles which I have

been discussing were applied. They are interesting illustrations of the conclusions of the judges

concerned in relation to the facts which the cases involved. They are not binding on this court

and, without intending any disrespect to the judges involved, I am content to regard them as

being confined to their own facts.

Was the judge's decision correct?

37 The line of authority reflected in Alexandrou v Oxford [1993] 4 All ER 328 and the Capital &

Counties case [1997] QB 1004 is not without its critics: see Markesinis, Tortious Liability of

Statutory Bodies: A Comparative and Economic Analysis of Five English Cases (1999) and Craig

and Fairgrieve, " Barrett , Negligence and Discretionary Powers" [1999] PL 626. However, unless

the line of authority can be distinguished, it is clearly binding on this court, although the adverse

response of the European Court of Human Rights in Osman v United Kingdom [1999] 1 FLR 193

may be influencing the House of Lords to adopt a more restrictive approach to the exclusion of

liability to categories of cases without first ascertaining their precise facts: see Barrett v Enfield

London Borough Council [1999] 3 WLR 79 and Markesinis , pp 96-104. In Barrett's case Lord

Browne-Wilkinson indicated that he found Osman's case extremely difficult to understand, a view

which has been echoed in a lecture of Lord Hoffmann "Human Rights and the House of Lords"

(1999) 62 MLR 159 and in the contribution to Public Law to which I have referred. The possible

consequences also concern me from a procedural point of view in the light of the new culture in

litigation in this jurisdiction as a result of the introduction of the Civil Procedure Rules 1998 (SI

1998/3132). I should, however, acknowledge that there may well be a more positive

consequence of the Osman decision. It does draw attention to the fact that in this area of the

law there is a danger that statements made in judgments will be applied more widely and more

rigidly than was in fact intended. The statements are intended to assist in the difficult task of

determining whether a duty of care exists. They are tools not rules. There are cases in which

even the three requirements identified by Lord Bridge of Harwich in the Caparo case [1990] 2

AC 605 may not by themselves provide an answer. Other tools may be needed to provide

assistance. It may help to consider whether the subject of the alleged breach is the manner in

which a discretion was exercised or the manner in which a decision was executed. With regard

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to the exercise of a statutory discretion it will be more difficult to establish that there is a duty.

If the allegation relates to an activity focused on a restricted number of individuals, the obstacles

in the way of establishing an obligation will be reduced. In these difficult cases it is necessary to

examine the facts in detail. They are therefore usually not suitable for determination before the

facts have been fully investigated. Before you can apply one case by analogy to another you

need to be clear as to the facts to which you are applying it. Otherwise there is a risk that a

principle can be applied to a situation where it produces a result which should offend your sense

of justice. This, in *51 Turner J's view and in my opinion, would be the consequence here of

accepting Mr Munby's argument.

38 In so far as the Osman case [1999] 1 FLR 193 underlined the dangers of a blanket approach

so much the better. However, it would be wrong for the Osman decision to be taken as a signal

that, even when the legal position is clear and an investigation of the facts would provide no

assistance, the courts should be reluctant to dismiss cases which have no real prospect of

success. Courts are now encouraged, where an issue or issues can be identified which will resolve

or help to resolve litigation, to take that issue or those issues at an early stage of the proceedings

so as to achieve expedition and save expense. There is no question of any contravention of

article 6 of the European Convention for the Protection of Human Rights and Fundamental

Freedoms (1953) (Cmd 8969) in so doing. Defendants as well as claimants are entitled to a fair

trial and it is an important part of the case management function to bring proceedings to an end

as expeditiously as possible. Although a strike out may appear to be a summary remedy, it is in

fact indistinguishable from deciding a case on a preliminary point of law.

39 That the line of authority on which Mr Munby relies is at least arguably capable of being

distinguished has already been held in the earlier decision of this court in this case.

40 There are obvious similarities between the facts of this case and the facts in the Alexandrou

v Oxford [1993] 4 All ER 328 and the Capital & Counties case [1997] QB 1004 type of situation.

The activities of the fire services are subject to a statutory framework, so are the functions of

ambulance services. Section 3(1) of the National Health Service Act 1977 imposes on the

Secretary of State a duty to provide, throughout England and Wales, to such extent as he

considers necessary to meet all reasonable requirements, "medical, dental, nursing and

ambulance services": sections 1 and 3(1) of the National Health Service Act 1977. This duty is

an exhortatory or target duty which does not create a statutory right, the breach of which can

give rise to a private law right to damages. As the police and the fire services can be summoned

by 999 calls so can the ambulance service, as in this case. However, the tasks which they can

be called on to do when summoned can be very different. Mr Munby referred to examples of

situations where to distinguish between one emergency service and another would suggest

totally different treatment if his argument was not correct. The examples were far from the facts

of this case. Here his argument could involve two different services provided under the same

section of the same Act being treated very differently.

41 The approach in the Capital & Counties case has been extended to coastguards responding

to an emergency at sea by May J in OLL Ltd v Secretary of State for Transport [1997] 3 All ER

897 . May J, following two earlier decisions at first instance, indicated that the distinctions

between the fire services and the coastguard were illusory and immaterial. He considered that

it was not possible "sensibly" to impose liability:

"by assessing a level of intervention which falls short of intervention which results in

positive injury directly inflicted ... Directly inflicted physical injury is the first building

block of the law of negligence because, *52 unless it is excused, it will almost

always be a component of a breach of duty": p 908.

May J considered that the position was sufficiently clear to strike out the statement of claim.

However, again the facts here are very different.

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42 While recognising the similarities, I have no reservations about expressing the view that the

decision of Turner J was right. The starting point is the fact that even when a statute only

establishes a power for a body to act in a particular manner the body can be liable for negligence

if there is also a common law duty created on the particular facts of the case. As Lord Browne-

Wilkinson states in his significant examination of this subject in X (Minors) v Bedfordshire County

Council [1995] 2 AC 633 , 735:

"It is clear that a common law duty of care may arise in the performance of statutory

functions. But a broad distinction has to be drawn between: (a) cases in which it is

alleged that the authority owes a duty of care in the manner in which it exercises a

statutory discretion; (b) cases in which a duty of care is alleged to arise from the

manner in which the statutory duty has been implemented in practice."

43 In the case of category (b) there is less difficulty in establishing that there is a duty of care,

and in this case it is a (b) situation with which we are concerned. In this passage it is duties not

powers which are being considered. The distinction between duties and powers is important

because, the exercise of a power being discretionary, it is unlikely that there will be any duty of

care. This is made clear by Lord Hoffmann in Stovin v Wise [1996] AC 923 , 950. But this case

is one in which it would have been irrational not to have accepted the request to provide an

ambulance and this can alter the situation: see Lord Hoffmann, at pp 951-952.

44 Lord Slynn of Hadley also deals with this subject in his opinion in Barrett v Enfield London

Borough Council [1999] 3 WLR 79 , 95-96. He indicates that, if what the authority has done is

outside its discretion, the statute is no defence. Lord Slynn cautions against introducing concepts

of administrative law into the law of negligence, at p 97b-c. But reading this comment in its

context, it is clear that Lord Slynn is not suggesting that the fact that an authority has acted

perversely in a public law sense is to be ignored. On the contrary he is adopting an approach

which I would respectfully endorse of stressing the need to have regard to the facts.

45 Here what was being provided was a health service. In the case of health services under the

1977 Act the conventional situation is that there is a duty of care. Why should the position of

the ambulance staff be different from that of doctors or nurses? In addition the arguments based

on public policy are much weaker in the case of the ambulance service than they are in the case

of the police or the fire service. The police and fire services' primary obligation is to the public

at large. In protecting a particular victim of crime, the police are performing their more general

role of maintaining public order and reducing crime. In the case of fire the fire service will

normally be concerned not only to protect a particular property where a fire breaks out but also

to prevent fire spreading. In the case of both services, there is therefore a concern to protect

the public generally. The emergency services *53 that can be summoned by a 999 call do, in

the majority of situations, broadly carry out a similar function. But in reality they can be very

different. The ambulance service is part of the health service. Its care function includes

transporting patients to and from hospital when the use of an ambulance for this purpose is

desirable. It is therefore appropriate to regard the LAS as providing services of the category

provided by hospitals and not as providing services equivalent to those rendered by the police

or the fire service. Situations could arise where there is a conflict between the interests of a

particular individual and the public at large. But, in the case of the ambulance service in this

particular case, the only member of the public who could be adversely affected was the claimant.

It was the claimant alone for whom the ambulance had been called.

46 Cases could arise where an ambulance is required to attend a scene of an accident in which

a number of people need transporting to hospital. That could be said to be a different situation,

but, as the numbers involved would be limited, I would not regard this as necessarily leading to

a different result. The result would depend on the facts. I would be resistant to a suggestion that

the ambulance service could be regarded as negligent because by an error of judgment a less

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seriously injured patient was transported to hospital leaving a more seriously injured patient at

the scene who, as a result, suffered further injuries. In such a situation, on the facts, it is most

unlikely that there would be conduct which could be properly regarded as negligent. The

requirement to establish that there has been a lack of care provides the LAS with the necessary

protection.

47 An important feature of this case is that there is no question of an ambulance not being

available or of a conflict in priorities. Again I recognise that where what is being attacked is the

allocation of resources, whether in the provision of sufficient ambulances or sufficient drivers or

attendants, different considerations could apply. There then could be issues which are not suited

for resolution by the courts. However, once there are available, both in the form of an ambulance

and in the form of manpower, the resources to provide an ambulance on which there are no

alternative demands, the ambulance service would be acting perversely "in circumstances such

as the present", if it did not make those resources available. Having decided to provide an

ambulance an explanation is required to justify a failure to attend within reasonable time.

48 Mr Munby did not suggest that the danger to the claimant was not reasonably foreseeable.

Nor did he base his case on policy considerations. He focused on the third strand, proximity,

alone. The three strands are often intertwined. In Caparo Industries Plc v Dickman [1990] 2 AC

605 , 633 Lord Oliver of Aylmerton stated:

"what have been treated as three separate requirements are, at least in most cases,

in fact merely facets of the same thing, for in some cases the degree of foreseeability

is such that it is from that alone that the requisite proximity can be deduced, whilst

in others the absence of that essential relationship can most rationally be attributed

simply to the court's view that it would not be fair and reasonable to hold the

defendant responsible."

*54

49 So in my judgment here. The fact that it was a person who foreseeably would suffer further

injuries by a delay in providing an ambulance, when there was no reason why it should not be

provided, is important in establishing the necessary proximity and thus duty of care in this case.

In other words, as there were no circumstances which made it unfair or unreasonable or unjust

that liability should exist, there is no reason why there should not be liability if the arrival of the

ambulance was delayed for no good reason. The acceptance of the call in this case established

the duty of care. On the findings of the judge it was delay which caused the further injuries. If

wrong information had not been given about the arrival of the ambulance, other means of

transport could have been used.

50 The ambulance call having been made, apparently attendance is automatic. This does not

prevent acceptance. If having attended there was no reason for the ambulance to go to the

hospital there would be no obligation to make an unnecessary journey.

51 The reaction of the judge to the facts of this case accords with the likely reaction of any well-

informed member of the public. In such a situation it would be regrettable indeed if there were

not to be a right to compensation. It is clearly a factor which influenced May LJ in another case

involving the police, Costello v Chief Constable of Northumbria [1999] ICR 752 , where the chief

constable was liable for the negligence of a senior police officer who exposed another police

officer to unnecessary risk of injury. May LJ said, at p 767: "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."

52 I would say exactly the same of the facts in this case. As in Costello's case, they are out of

the ordinary. I would hope that it is unusual in the extreme for an ambulance to be delayed as

this ambulance was delayed without the crew being able to put forward any explanation.

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53 I would dismiss this appeal.

ALDOUS LJ I agree.

LAWS LJ I also agree.

Representation

Solicitors: Capsticks ; T G Baynes, Sidcup . Appeal dismissed with costs. Permission to appeal.

(J B S )

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Michael and others v Chief Constable of South Wales Police and another

Police - Negligence - Duty to take care - Deceased making emergency call to police - Call being received by

neighbouring force to county where deceased resided - Second defendant contacting first defendant police

force as being relevant force - Errors occurring in handling of call - Deceased being murdered - Claimants

bringing claims in negligence and for failure to protect life - Defendant police forces applying to strike out

claims - Court of Appeal granting summary judgment on claim in negligence and permitting claim for failure

to protect life to proceed - Claimants appealing and police cross-appealing - Whether police owing duty of

care in negligence - Whether breach of deceased's rights occurring - European Convention on Human

Rights, arts 2, 3

[2015] UKSC 2, (Transcript)

SUPREME COURT

LORD NEUBERGER P, LADY HALE DP, LORDS, MANCE, KERR, REED, TOULSON, HODGE

28, 29 JULY 2014, 28 JANUARY 2015

28 JANUARY 2015

N Bowen QC, D Fairgrieve and J Bunting for the Appellants/Claimants

Lord Pannick QC and J Johnson QC for the Respondent

K Monaghan QC and R Thacker for Refuge and Liberty as Interveners

C Gallagher and C McCarthy for Cymorth i Ferched Cymru as Intervener

Martyn Prowel Ltd, Cardiff; South Wales and Gwent Police Joint Legal Services; Deighton Pierce Glynn Ltd;

Hopkin Murray Beskine Ltd

LORD TOULSON: (with whom LORDS, NEUBERGER (P), MANCE, REED and HODGE agree):

INTRODUCTION

[1] This appeal arises from the tragic murder of Joanna Michael by a former partner, which might have been

prevented if the police had responded promptly to a 999 call made by Ms Michael. As I explain below, two

police forces were involved, Gwent Police and South Wales Police, and there was a lack of effective liaison

between them.

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[2] The Claimants in the action are Ms Michael's parents and her two young children. The defendants are

the Chief Constables of Gwent Police and the South Wales Police. The claim is brought for damages for

negligence at common law and under the provisions of the Fatal Accidents Act 1976 and Law Reform

Miscellaneous Provisions Act 1934 (which I will refer to as the common law or negligence claim), and for

damages under the Human Rights Act 1998 for breach of the defendants' duties as public authorities to

protect Ms Michael's right to life under art 2 of the European Convention on Human Rights (which I will refer

to as the human rights or art 2 claim). Originally there was also a claim for misfeasance in public office.

[3] The police applied for the claims to be struck out or for summary judgment to be entered in their favour.

At first instance His Honour Judge Jarman QC struck out by consent the claim for misfeasance in public

office but in a carefully reasoned judgment he refused to strike out or give summary judgment on the

negligence and art 2 claims. The Court of Appeal reversed Judge Jarman's decision in part. They held

unanimously that there should be summary judgment in favour of the defendants on the negligence claim for

reasons given by Longmore LJ, with which Richards and Davis LJJ agreed. The majority upheld Judge

Jarman's decision that the art 2 claim should proceed to trial. Davis LJ dissented on that issue. He would

have held that on the facts alleged by the Claimants there was no possibility that the claim under art 2 could

succeed.

[4] The Claimants appeal against the decision of the Court of Appeal on the negligence claim. The police

cross appeal against the decision of the majority of the Court of Appeal on the art 2 claim. Since the court is

considering as a matter of law whether the claims have a real possibility of success, it must be assumed for

present purposes that all factual allegations made by the Claimants are capable of being established. In

relation to the negligence claim, the sole question is whether the police owed any duty of care to Ms Michael

on the facts as they are alleged. If so, questions about whether there was a breach of duty and its

consequences would be matters for the trial.

FACTS

[5] Ms Michael lived in Cardiff with her two children who were aged seven years and ten months at the date

of her death. On 5 August 2009 at 2.29am Ms Michael dialled 999 from her mobile phone. She lived in the

area of the South Wales Police, but the call was picked up by a telephone mast in Gwent and was routed to

the Gwent Police call centre. It was received by a civilian call handler. The conversation was recorded and it

has been transcribed. Ms Michael said that her ex-boyfriend was aggressive, had just turned up at her house

in the middle of the night and had hit her. He had found her with another man. He had taken her car to drive

the other man home and had said that when he came back he was going to hit her. She said that he was

going to be back "any minute literally".

[6] She was asked by the call handler if she could lock the doors to keep him out. She replied that she could

lock the doors, but she did not know what he would do. She did not know if he had a key or how he got into

her house.

[7] The next part of the transcript reads ". . . he come back and . . . he told the guy to get out of the room,

and then he bit my ear really hard and it's like all swollen and all bruised at the moment, and he just said 'I'm

going to drop him home and (inaudible) [fucking kill you]'."

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[8] There is no explanation on the face of the transcript why the last three words are preceded by

"(inaudible)" and appear in square brackets; but according to the call handler, who later made a written

statement after listening to the recording of the call, at several points there was interference and noise in the

background. As to the words in question, she said:

"On listening to the recording I can hear the words 'fucking kill you' being said by Joanna. My

understanding is assisted by reading these words in the typed transcript. I had certainly heard

and understood her previously when she had said he was going to return and 'hit her'. For

periods of time throughout the call I was very distracted. As I explained . . . all the details were

going to have to be retaken by South Wales Police, the call graded and resources deployed

from their end not ours . . . . At the time I was distracted and under pressure to redirect the call

and my memory is that I did not hear 'kill you'. I don't remember her saying this. I was more

concerned at the time with the safety of the other man in the company of the assailant."

[9] The call ended with the call handler telling Ms Michael that her call had come through to Gwent Police

and that she would pass the call on to the police in Cardiff. She added "they will want to call you back so

please keep your phone free".

[10] The call was graded by Gwent Police as a "G1" call. This meant that it required an immediate response

by police officers. Ms Michael's home was no more than five or six minutes' drive from the nearest police

station.

[11] The Gwent call handler immediately called South Wales Police and gave an abbreviated version of

what Ms Michael had said. No mention was made of a threat to kill. South Wales Police graded the priority of

the call as "G2". This meant that officers assigned to the case should respond to the call within 60 minutes.

[12] At 2.43am Ms Michael again called 999. The call was again received by Gwent Police. Ms Michael was

heard to scream and the line went dead.

[13] South Wales Police were immediately informed. Police officers arrived at Ms Michael's address at

2.51am. They found that she had been brutally attacked. She had been stabbed many times and was dead.

Her attacker was soon found and arrested. He subsequently pleaded guilty to murder and was sentenced to

life imprisonment.

[14] Data held by South Wales Police recorded a history of abuse or suspected domestic abuse towards Ms

Michael by the same man. On four occasions between September 2007 and April 2009 incidents had been

reported to the police and entries had been made on a public protection referral for domestic abuse form, but

in two instances the risk indications section of the form was not completed.

[15] The consequences are stark and tragic. Ms Michael has lost her life in the most violent fashion. Her

children have lost their mother and breadwinner. Her parents have lost their daughter and have taken on the

responsibility and work of bringing up their grandchildren.

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[16] An investigation by the Independent Police Complaints Commission led to a lengthy report. It contained

serious criticisms of both police forces for individual and organisational failures.

ISSUES

[17] The court received full written submissions from the Appellants, the respondents and three interveners.

Liberty and Refuge made joint written submissions. Separate but broadly similar written submissions were

made by Cymorth i Ferched Cymru (Welsh Women's Aid). The court heard oral submissions on behalf of the

Appellants from Nicholas Bowen QC, on behalf of Liberty and Refuge from Karon Monaghan QC and on

behalf of the respondents from Lord Pannick QC.

[18] The arguments raised the following issues:

(1) If the police are aware or ought reasonably to be aware of a threat to the life or physical safety of an identifiable person, or member of an identifiable small group, do the police owe to that person a duty under the law of negligence to take reasonable care for their safety?

I will refer to this as the interveners' liability principle, because it was advanced by Ms Monaghan.

(2) Alternatively, if a member of the public (A) furnishes a police officer (B) with apparently credible evidence that a third party whose identity and whereabouts are known presents a specific and imminent threat to his life or physical safety, does B owe to A a duty to take reasonable steps to assess such threat and, if appropriate, take reasonable steps to prevent it being executed?

I will refer to this for convenience as Lord Bingham's liability principle, because that is how Lord Bingham of Cornhill described it in his dissenting judgment in Smith v Chief Constable of Sussex Police, heard jointly with Van Colle v Chief Constable of the Hertfordshire Police [2008] UKHL 50, [2009] 1 AC 225, at para 44, [2008] 3 All ER 977. Mr Bowen argued in support of this proposition as an alternative to his principal proposition.

(3) On the basis of what was said in the first 999 call, and the circumstances in which it was made, should the police be held to have assumed responsibility to take reasonable care for Ms Michael's safety and therefore owed her a duty of care in negligence?

This was Mr Bowen's main argument.

(4) On the material before the court, was there arguably a breach of art 2?

DOMESTIC VIOLENCE

[19] In order to set their legal arguments in context, the interveners and the Appellants referred to a

substantial body of material about the deep-rooted problem of domestic violence in our society, its

prevalence and weaknesses which have been identified in the police response to it. According to official

homicide statistics, since 2001 in the United Kingdom around 100 women have been killed every year by a

current or former partner. A report published last year by Her Majesty's Inspectorate of Constabulary made

Page 37

strong criticisms of the overall police response to victims of domestic abuse (Everyone's Business: Improving

the Police Response to Domestic Violence).

[20] It was not suggested by anyone in this case that the law of negligence should be developed in a way

which is gender specific, but it was submitted that the need to combat the evil of domestic violence should

influence the development of the common law in relation to potential victims of violence generally. Ms

Monaghan also relied on the United Kingdom's international legal responsibilities.

[21] The United Kingdom signed the Convention on the Elimination of All Forms of Discrimination Against

Women (CEDAW) on 22 July 1981 and ratified it on 7 April 1986.

[22] Article 2 of CEDAW imposes an obligation on states, among other things, to establish legal protection

of the rights of women on an equal basis with men and to ensure through competent national tribunals and

other public institutions the effective protection of women against any act of discrimination.

[23] Discrimination is defined in art 1 as including any distinction, exclusion or restriction made on the basis

of sex which has the effect of impairing the enjoyment by women of their human rights on a basis of equality

of men and women. The Committee on the Elimination of Discrimination has issued a general

recommendation on the subject of violence against women: General Recommendation No 19 (11th session,

1992). It states that gender-based violence is a form of discrimination that seriously inhibits women's ability

to enjoy rights and freedoms on a basis of equality with men. It recommends, among other things, that state

parties should ensure that laws against family violence and abuse give adequate protection to all women;

that effective complaints procedures and remedies, including compensation, should be provided; and that

measures that are necessary to overcome family violence should include civil remedies and criminal

penalties where necessary in cases of domestic violence.

[24] Civil remedies may of course take many forms. There is no specific recommendation that a victim of

domestic violence should have a right to sue the police for damages in the case of domestic violence which

could have been prevented by the police. Nor is the United Kingdom under an international legal obligation to

provide a remedy in that form.

[25] The United Kingdom has signed, but not yet ratified, the Convention on Preventing and Combating

Violence Against Women and Domestic Violence ("Istanbul Convention"), which came into force on 1 August

2014. It requires, by art 4(1), state parties to "take the necessary legislative and other measures to promote

and protect the right for everyone, particularly women, to live free from violence in both the public and the

private sphere" and by art 5(2) to "take the necessary legislative and other measures to exercise due

diligence to prevent, investigate, punish and provide reparation for acts of violence covered by the scope of

this Convention that are perpetrated by non-state actors".

[26] Aside from the fact that this Convention has not yet been adopted by the United Kingdom, it leaves it to

states to decide what measures are necessary to promote these objectives.

[27] Ms Monaghan submitted that it is also highly arguable that gender equality has achieved the status of a

peremptory norm (jus cogens) in international law within the meaning of art 53 of the Vienna Convention on

Page 38

the Law of Treaties (which defines a peremptory norm of general international law as "a norm accepted and

recognised by the international community of states as a whole as a norm from which no derogation is

permitted and which can be modified only by a subsequent norm of general international law having the

same character"). There was no detailed argument on this point because on the assumption for present

purposes that there is now a rule of customary international law which obliges states to prevent and respond

to acts of violence against women with due diligence (as the Special Rapporteur on Violence Against

Women concluded in a report dated 20 January 2006 to the Commission on Human Rights of the United

Nations Economic and Social Council), it is a matter for individual states how they do so.

[28] Ms Monaghan's submission was more general. She submitted that the international documents added

weight to the arguments in favour of adopting the interveners' liability principle. Acceptance of that principle,

it was submitted, would be an appropriate measure directed at preventing violence and remedying damage

caused by the state's failure adequately to address the problem.

CASE LAW

[29] It has been long established that the police owe a duty for the preservation of the Queen's peace. The

phrase has an old-fashioned sound but the principle remains true. Halsbury's Laws of England, fifth ed

(2013), Vol 84, para 40, states that the primary function of the constable remains, as in the 17th century, the

preservation of the Queen's peace.

[30] In Glasbrook Brothers Ltd v Glamorgan County Council [1925] AC 270, 23 LGR 61, 89 JP 29 a colliery

manager asked for police protection for his colliery during a strike. He wanted police officers to be billeted on

the premises. The senior police officer for the area was willing to provide protection by a mobile force, but he

refused to billet police officers at the colliery unless the manager agreed to pay for the additional service at a

specified rate. The manager promised to do so, but when the police submitted their bill the company refused

to pay it on the ground that it was the duty of the police to prove necessary police protection without

payment. The police sued the colliery and won.

[31] The House of Lords held that the police were bound to provide such protection as was necessary to

prevent violence and to protect the mines from criminal injury without payment, but that it was lawful for the

police to charge the colliery for extra protection, and that the judge had been entitled to find on the facts that

the case fell into that category. Viscount Cave LC stated the nature of the duty of the police at pp 277-278:

"No doubt there is an absolute and unconditional obligation binding the police authorities to

take all steps which appear to them to be necessary for keeping the peace, for preventing

crime, or for protecting property from criminal injury; and the public, who pay for this protection

through the rates and taxes, cannot lawfully be called upon to make a further payment for that

which is their right. This was laid down by Pickford LJ in the case of Glamorganshire Coal Co v

Glamorganshire Standing Joint Committee [1916] 2 KB 206, 229 in the following terms:

'If one party to a dispute is threatened with violence by the other party he is entitled to

protection from such violence whether his contention in the dispute be right or wrong, and to

allow the police authority to deny him protection from that violence unless he pays all the

expense in addition to the contribution which with other ratepayers he makes to the support of

the police is only one degree less dangerous than to allow that authority to decide which party

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is right in the dispute and grant or withhold protection accordingly. There is a moral duty on

each party to the dispute to do nothing to aggravate it and to take reasonable means of self-

protection, but the discharge of this duty by them is not a condition precedent to the discharge

by the police authority of their own duty.'

With this statement of the law I entirely agree . . . ."

[32] To similar effect Lord Parker CJ said in Rice v Connolly [1966] 2 QB 414, p 419, [1966] 2 All ER 649,

130 JP 322, that it is the duty of a police constable "to take all steps which appear to him necessary for

keeping the peace, for preventing crime or for protecting property from criminal injury".

[33] The duty is one which any member of the public affected by a threat of breach of the peace, whether by

violence to the person or violence to property, is entitled to call on the police to perform. In short, it is a duty

owed to the public at large for the prevention of violence and disorder.

[34] Under s 83 of the Police Reform Act 2002 (substituting Sch 4 of the Police Act 1996) every constable is

required to make the following attestation:

"I . . . do solemnly and sincerely declare and affirm that I will well and truly serve the Queen in

the office of constable, with fairness, integrity, diligence and impartiality, upholding fundamental

human rights and according equal respect to all people; and that I will, to the best of my power,

cause the peace to be kept and preserved and prevent all offences against people and

property . . . ."

[35] This reflects the common law duty of the police. In recent years the courts have considered on a

number of occasions whether, and in what circumstances, the police may owe a private law duty to a

member of the public at risk of violent crime in addition to their public law duty.

[36] In Hill v Chief Constable of West Yorkshire [1989] AC 53, [1988] 2 All ER 238, [1988] 2 WLR 1049 the

Claimant was the mother of the last victim of a notorious murderer. Between 1975 and 1980 he murdered 13

young women in West Yorkshire. The statement of claim alleged that the police made a number of mistakes

in their investigation which should not have been made by a competent police force exercising reasonable

care and skill. For the purpose of deciding whether Mrs Hill had a valid claim against the police in

negligence, the House of Lords assumed that the factual allegations were true, and that if the police had

exercised reasonable care the murderer would have been arrested before he had an opportunity to murder

her daughter. It was held that the police were under no liability in negligence.

[37] The leading speech was given by Lord Keith of Kinkel. He recognised that the general law of tort

applies as much to the police as to anyone else. Examples of police liability for negligence were Knightley v

Johns [1982] 1 All ER 851, [1982] 1 WLR 349, [1982] RTR 182 (where a police officer who attended the

scene of a road accident carelessly created an unnecessary danger to the Claimant) and Rigby v Chief

Constable of Northamptonshire [1985] 2 All ER 985, [1985] 1 WLR 1242 (where a police officer attending a

break-in to a gunsmith's shop carelessly caused severe damage to the premises by the firing of a canister

Page 40

into the building in the absence of fire-fighting equipment). But he held that the general duty of the police to

enforce the law did not carry with it a private law duty towards individual members of the public.

[38] Counsel for Mrs Hill relied on Anns v Merton London Borough Council [1978] AC 728, [1977] 2 All ER

492, 75 LGR 555 as authority for the proposition that the police, having decided to investigate the Yorkshire

murderer's crimes, owed to his potential future victims a duty to do so with reasonable care. The foundation

of the duty was said to be the foreseeability of harm to potential future victims if the murderer were not

apprehended. This, it was submitted, was sufficient to give rise to a duty of care applying Lord Atkin's

statement of principle in Donoghue v Stevenson [1932] AC 562, 101 LJPC 119, 37 Com Cas 350 and Lord

Wilberforce's two stage liability test in Anns. Lord Keith rejected the argument. He emphasised that

foreseeability of harm was not itself a sufficient basis for a duty of care in negligence. Some further

ingredient was needed to establish the requisite proximity of relationship between the Claimant and the

defendant, and all the circumstances of the case had to be considered and analysed in order to ascertain

whether such an ingredient was present.

[39] Lord Keith referred to the decision of the House of Lords in Dorset Yacht Co Ltd v Home Office [1970]

AC 1004, [1970] 2 All ER 294, [1970] 2 WLR 1140, where Lord Diplock said (at p 1058) that the development

of the law of negligence proceeds by first identifying the relevant characteristics of the conduct and

relationship between the parties involved in the particular case and the kinds of conduct and relationships

which have been held in previous decisions to give rise to a duty of care. In that case it was held that an

action in negligence could lie against prison officers who negligently allowed young offenders camping on an

island under the prison officers' supervision to escape from the island by stealing the Plaintiffs' yacht. The

reason for imposing liability was that the prison officers were responsible for exercising proper control over

the wrong-doers, who were in their charge, and there was sufficient proximity between the prison officers and

the owners of yachts in the close vicinity of the camp, because the use of their property as a means of

escape was the very thing which the prison officers ought to have foreseen. By bringing the young offenders

onto the island and leaving them unsupervised, the prison officers created a danger for the owners of the

yachts which would not otherwise have existed.

[40] In contrast, Lord Diplock said (at p 1070) that the courts would be exceeding their function in

developing the common law to meet changing conditions if they were to recognise a duty of care to prevent

criminals escaping from custody owed to a wider category of members of the public than those whose

property was exposed to "an exceptional added risk by the adoption of a custodial system for young

offenders which increased the likelihood of their escape unless due care was taken".

[41] Lord Keith said that if no general duty of care was owed to individual members of the public to prevent

the escape of a known criminal, there could not reasonably be imposed on the police a duty of care to

identify and apprehend an unknown one. Ms Hill could not be regarded as a person at special risk because

she was young and female. She was one of a vast number of the female general public at risk from the

murderer's activities. He concluded that there was no ingredient or characteristic giving rise to the necessary

proximity between the police and Ms Hill, and that the circumstances of the case were not capable of

establishing a duty of care owed towards her by the police.

[42] If Lord Keith had stopped at that point, it is unlikely that the decision would have caused controversy. It

is not suggested in the present case that the decision itself was wrong. If the interveners' liability principle is

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correct, it would not have assisted Mrs Hill, because her daughter was not an identifiable victim or a member

of an identifiable small group.

[43] However, having observed that what he had said was sufficient for the disposal of the appeal, Lord

Keith went on to discuss the application of the second stage of Lord Wilberforce's two stage test in Anns, if

there had been potential liability under the first stage (at p 63). He concluded that it would be contrary to the

public interest to impose liability on the police for mistakes made in relation to their operations in the

investigation and suppression of crime. He said that the manner and conduct of such an investigation must

necessarily involve a variety of decisions to be made on matters of policy and discretion, such as which

particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to

deploy available resources. Many such decisions would not be appropriate to be called in question, but

elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal

of police time and expense might have to be put into the preparation of a defence to the action. The result

would be a significant diversion of police manpower and attention from their most important function. He also

said that the imposition of liability might lead to the exercise of the investigative function being carried out in

a defensive frame of mind. He concluded that the Court of Appeal had been 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, [1967] 3 All ER 993, [1967] 3 WLR 1666 were held to render a barrister immune from

actions for negligence in his conduct of proceedings in court".

[44] An "immunity" is generally understood to be an exemption based on a defendant's status from a liability

imposed by the law on others, as in the case of sovereign immunity. Lord Keith's use of the phrase was, with

hindsight, not only unnecessary but unfortunate. It gave rise to misunderstanding, not least at Strasbourg. In

Osman v United Kingdom (1998) 29 EHRR 245, [1999] 1 FLR 193, [1999] Fam Law 86 the Strasbourg court

held that the exclusion of liability in negligence in a case concerning acts or omissions of the police in the

investigation and prevention of crime amounted to a restriction on access to the court in violation of art 6.

This perception caused consternation to English lawyers. In Z v United Kingdom (2001) 34 EHRR 97, [2001]

2 FCR 246, [2001] 2 FLR 612 the Grand Chamber accepted that its reasoning on this issue in Osman was

based on a misunderstanding of the law of negligence; and it acknowledged that it is not incompatible with

art 6 for a court to determine on a summary application that a duty of care under the substantive law of

negligence does not arise on an assumed state of facts.

[45] In Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24, [2005] 2 All ER 489, [2005] 1

WLR 1495, the Claimant and his friend Stephen Lawrence were set upon by a gang of white youths in a

racist attack. Stephen Lawrence was murdered. The Claimant was traumatised. He claimed that the police

owed him a duty of care in negligence: (a) to take reasonable steps to assess whether he was a victim of

crime and, if so, to accord him reasonably appropriate protection and support; (b) to take reasonable steps to

afford him the protection, assistance and support commonly afforded to a key eye-witness to a serious crime

of violence; and (c) to afford reasonable weight to the account given by him and to act on the account

accordingly.

[46] The House of Lords held that the police owed him no such legal duty of care. All the judges endorsed

the correctness of the decision in Hill but they expressed reservations about the width of some of the

observations in Hill (per Lord Bingham at para 3, Lord Nicholls of Birkenhead at para 6 and Lord Steyn at

para 28). It is clear that the part of Lord Keith's speech to which they were referring was the final part in

which he addressed the second stage of Lord Wilberforce's test in Anns.

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[47] Lord Steyn (with whom Lords Rodger of Earlsferry and Brown of Eaton-under-Heywood agreed) said

that the principle in Hill should be reformulated in terms of the absence of a duty of care rather than a blanket

immunity (para 27). He noted that it was conceded by the police that cases of assumption of responsibility

under what he described as the extended Hedley Byrne doctrine (Hedley Byrne & Co Ltd v Heller & Partner

Ltd [1964] AC 465, [1963] 2 All ER 575, [1963] 3 WLR 101) fall outside the principle in Hill (para 29).

[48] However, he said that the core principle of Hill had remained unchallenged in domestic jurisprudence

and European jurisprudence for many years, and that if a case such as Hill were to arise for fresh decision it

would undoubtedly be decided in the same way. He reiterated that 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. He said that a retreat from

the principle in Hill would have detrimental effects for law enforcement "By placing general duties of care on

the police to victims and witnesses the police's ability to perform their public functions in the interests of the

community, fearlessly and with despatch, would be impeded." (Paragraph 30)

[49] By endorsing the principle in Hill in the terms that he did, Lord Steyn confirmed that the functions of the

police which he identified were public law duties and did not give rise to private law duties of care (whether to

victims, witnesses or suspects), although this did not exclude liability under Hedley Byrne.

[50] Lord Bingham and Lord Nicholls were also of the view that the public duties of the police would

potentially be impeded by the imposition of the duties asserted by Mr Brooks. Lord Bingham said that the

duties pleaded could not be imposed on police officers charged in the public interest with the investigation of

a very serious crime without "potentially undermining the officers' performance of their functions, effective

performance of which serves an important public interest" (para 4). Lord Nicholls was of the same view that

the three legal duties asserted by the Claimant "would cut across the freedom of action the police ought to

have when investigating serious crime" (para 5).

[51] In Brooks Lord Steyn referred to an argument that Hill should be distinguished on the basis that in that

case the police negligence was the indirect cause of Ms Hill's murder whereas in Brooks the behaviour of the

police was a direct cause of harm to him. Lord Steyn observed that this did not do justice to the essential

reasoning in Hill and he described the distinction as unmeritorious (para 32).

[52] In Van Colle v Chief Constable of the Hertfordshire Police and Smith v Chief Constable of Sussex

Police [2008] UKHL 50, [2009] AC 225, [2008] 3 All ER 977 the House of Lords heard together two appeals

involving in different ways the question formulated by Lord Bingham as follows: if the police are alerted to a

threat that D may kill or inflict violence on V, and the police take no action to prevent that occurrence, and D

does kill or inflict violence on V, may V or his relatives obtain civil redress against the police, and if so, how

and in what circumstances?

[53] In Van Colle threats were made against a prosecution witness in the weeks leading to a trial. They

included two telephone calls from the accused to the witness. The second call was aggressive and

threatening but contained no explicit death threat. The witness reported the threats to the police. The matter

was not treated with urgency. An arrangement was made for the police to take a witness statement, after

which the police intended to arrest the accused, but in the interval the witness was shot dead by the

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accused. His parents brought a claim against the police under the Human Rights Act 1998 relying on arts 2

and 8 of the Convention. There was no claim under common law. The police were held liable at first instance

and failed in an appeal to the Court of Appeal, but succeeded in an appeal to the House of Lords.

[54] The House of Lords applied the test laid down by the Strasbourg court in Osman (para 116) for

determining when national authorities have a positive obligation under art 2 to take preventative measures to

protect an individual whose life is at risk from the criminal acts of another:

"it must be established to [the court's] satisfaction that the authorities knew or ought to have

known at the time of the existence of a real and immediate risk to the life of an identified

individual or individuals from the criminal acts of a third party and that they failed to take

measures within the scope of their powers which, judged reasonably, might have been

expected to avoid that risk."

[55] The critical question of fact was whether the police, making a reasonable and informed judgment at the

time, should have appreciated that there was a real and immediate risk to the life of the victim. The House of

Lords held that the test was not met.

[56] Smith reached the House of Lords on an application to strike out. The question was whether the police

owed a duty of care to the Claimant on the assumed facts. The Claimant was a victim of violence by a former

partner. He had suffered violence at the hands of the other man during their relationship. After it ended, he

received a stream of violent, abusive and threatening messages, including death threats. He reported these

matters to the police and told a police inspector that he thought that his life was in danger. A week later the

man attacked the victim at his home address with a claw hammer, causing him fractures of the skull and

brain damage. The assailant was subsequently convicted of making threats to kill and causing grievous

bodily harm with intent. The House of Lords held by a majority that the police owed the victim no duty of care

in negligence.

[57] Lord Bingham, dissenting, formulated his liability principle which I have set out.

[58] Lord Bingham's starting point was that the circumstances in which A will be held liable in negligence for

unintended harm suffered by B depend on the relationship between them. He recognised that it is not usual

for A to be liable to B where harm is caused to B by a third party C, but said that in some circumstances A

might be liable for such harm if A should have prevented C. In some cases A's liability had been found to

depend on an assumption of responsibility by A towards B; and in other cases, notably Dorset Yacht, on the

finding of a special relationship between A and C by virtue of which A was responsible for controlling C.

Currently, he said, the most favoured test of liability was the three-fold test laid down by the House of Lords

in Caparo Industries plc v Dickman [1990] 2 AC 605, [1990] 1 All ER 568, [1990] BCLC 273.

[59] Lord Bingham did not consider that his liability principle conflicted with the ratio of either Hill or Brooks,

or that it would distract the police from their primary function of suppressing crime and apprehending

criminals. He observed that statements in Glasbrook Bros Ltd v Glamorgan County Council and Glamorgan

Coal Co Ltd v Glamorganshire Standing Joint Committee [1916] 2 KB 206, 14 LGR 419, 80 JP 289, [1916-

17] All ER Rep 46 (referring to protection of property) would support a broader liability principle, but he said

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that the law attached particular importance to the protection of life and physical safety, and he did not

consider it necessary to analyse in detail the cases on property damage.

[60] Lord Bingham did not consider that the policy reasons given by Lord Keith in Hill justified the width of

what he said about police immunity.

[61] Lord Hope of Craighead (with whom Lord Carswell and Lord Brown agreed) shared Lord Bingham's

view that the reasons given by Lord Keith in Hill for saying that an action for damages for negligence should

not lie against the police on grounds of public policy did not all stand up to critical examination. He regarded

Brooks as a more important authority. In disagreement with Lord Bingham, he considered that the risks

identified in Brooks of imposing principles which would tend to inhibit a robust approach in addressing a

person as a possible suspect or victim were relevant to cases of which Smith was an example.

[62] Lord Hope recognised that Lord Bingham's liability principle was confined to cases where a member of

the public furnished apparently credible evidence to the police that a third party represented a specific and

imminent threat to his life or physical safety, but he considered that this formulation would lead to uncertainty

in its application and to the detrimental effects about which Lord Steyn had warned in Brooks.

[63] Lord Phillips of Worth Matravers CJ identified the core principle in Hill as being that in the absence of

special circumstances the police owe no common law duty of care to protect individuals against harm caused

by criminals (para 97). The question was whether that core principle could stand with, or accommodate by

way of exception, the liability principle formulated by Lord Bingham. As to that, he did not find it easy to

identify the essential parameters of the principle. He asked rhetorically whether the principle would apply

when the evidence emanates from a third person; or if the whereabouts but not the identity of the potential

wrongdoer was known; or if the threat was specific, but not imminent; or if the threat was imminent but not

specific. He also questioned why the principle should be restricted to a threat to life or physical safety, and

not apply to a threat to property. He concluded (para 100) that the elements in Lord Bingham's liability

principle were facts which would make particularly egregious a breach of duty of care that could be more

simply stated "where the police have reason to believe that an individual is threatened with criminal violence

they owe a duty to that person to take such action as is in all circumstances reasonable to protect that

person". But such a duty of care would be in direct conflict with Hill. He therefore found himself reluctantly

unable to accept Lord Bingham's liability principle.

[64] Hill, Brooks and Van Colle and Smith are the most important decisions but some others deserve

mention.

[65] In Calveley v Chief Constable of the Merseyside Police [1989] AC 1228, [1989] 1 All ER 1025, [1989] 2

WLR 624 the House of Lords upheld a decision striking out claims in negligence for damages for lost

overtime by police officers who had been suspended pending disciplinary proceedings which ended in their

reinstatement. They alleged that they were owed a duty by the investigating officers to exercise proper care

and expedition in the conduct of the investigation which had not been met. It was argued that a police officer

investigating a suspected crime owes a duty of care to the suspect and that the same principle applied to the

investigation of a disciplinary offence. The House of Lords rejected the argument, which Lord Bridge of

Harwich described as startling (p 1238). He said that other considerations apart, it would be contrary to

public policy to prejudice the fearless and efficient discharge by police officers of their vitally important public

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duty of investigating crime by requiring them to act under the shadow of a potential action for damages for

negligence by the suspect.

[66] Similarly in Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335, [1995] 1 All ER

833, [1995] 2 WLR 173 the Court of Appeal upheld decisions striking out actions for negligence brought by

Claimants who had been arrested and held in custody during criminal investigations which were

discontinued. Steyn LJ, in the leading judgment, added the qualification that there might be a case in which

the Crown Prosecution Service assumed by its conduct a responsibility towards a particular defendant under

the Hedley Byrne principle, as expounded by Lord Goff of Chieveley in Spring v Guardian Assurance plc

[1995] 2 AC 296, [1994] 3 All ER 129, [1994] IRLR 460.

[67] In that case Lord Goff said that Hedley Byrne was widely regarded as a case on liability in damages for

negligent misstatement and liability in negligence for economic loss, which it was, but that it was important

not to lose sight of the underlying wider principle. The underlying principle rested on an assumption of

responsibility by the defendant towards the Plaintiff, coupled with reliance by the Plaintiff on the exercise by

the defendant of due skill and care. The principle that a duty of care could arise in that way was not limited to

a case concerned with the giving of information and advice (Hedley Byrne) but could include the

performance of other services.

[68] Elguzuli-Daf was cited with approval in Brooks and in Van Colle and Smith.

[69] An Informer v A Chief Constable [2012] EWCA Civ 197, [2013] QB 579, [2012] 3 All ER 601 provides

an example of a duty of care arising from an assumption of responsibility coupled with reliance by the

Claimant. The Claimant contacted the police regarding the activities of a business associate. He was

introduced to two police contact handlers. He agreed to act as an informant under the police instructions and

he later signed a set of instructions prepared by the police. At the outset they explained the steps which they

would take to protect his identity and gave him assurances that they would treat his safety and that of his

family as a priority. As the investigation developed the Claimant himself became a suspect. A restraint order

was obtained against him under the Proceeds of Crime Act 2002, prohibiting him from disposing of his

assets, but the Crown Prosecution Service eventually decided not to prosecute him and the restraint order

was discharged. He sued the police, alleging that they owed him a duty of care to protect his economic

interests. The police conceded that they owed a duty of care to protect his physical well-being, and that of his

family. They had assured him that they would do so and he had acted on the faith of their assurances. But

they had given him no assurances that they would protect his economic interests and the Court of Appeal

upheld the judge's decision that they owed him no such duty, which would potentially conflict with their

responsibility to the public for the investigation of crime and the proceeds of crime.

[70] There have been cases of a police force being held liable in negligence for failing to take proper care

for the protection of a police officer against a criminal attack, but they were based on the duty of care owed

to the Claimants as employees whose employment exposed them to the risk of such an attack in the

performance of their duty: Costello v Chief Constable of Northumbria [1999] 1 All ER 550, [1999] ICR 752,

[1998] NLJR 1880; Mullaney v Chief Constable of the West Midlands [2001] EWCA Civ 700.

[71] Claims against other emergency services have been treated in a similar way to claims against the

police (except in the case of the ambulance service, to which I refer below). In Capital & Counties plc v

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Hampshire County Council [1997] QB 1004, [1997] 2 All ER 865, [1997] 3 WLR 331 the Court of Appeal

considered claims in negligence against fire authorities arising out of three incidents in which the fire brigade

responded to a 999 call.

[72] In the first case the fire brigade was called to a fire at office premises in Hampshire. The fire triggered

the operation of a heat-activated sprinkler system, but on arrival a fire brigade officer gave instructions for the

sprinkler system to be shut down. This led to the fire rapidly spreading out of control and the premises were

destroyed. If the sprinkler system had been left on and the fire brigade had otherwise acted as it did to

combat the fire, the premises would not have been destroyed.

[73] In the second case the fire brigade was called to the scene of some fires on waste land near to the

Claimants' industrial premises in London. When the fire brigade arrived the fires had already been

extinguished. After checking that there was no evidence of any continuing danger the fire brigade left. Later a

fire broke out at the Claimants' premises. They sued the fire authority alleging negligence in failing properly

to inspect the wasteland and failing to ensure that all fires and risk of further fires in the area had been

eliminated before leaving.

[74] In the third case the fire brigade was called to a fire at a chapel in Yorkshire. The water hydrants near

the premises either failed to work or the officers were unable for a long time to locate them, and so water had

to be fetched from a dam half a mile away. It should have been possible to contain the fire, but as a result of

the water shortage the whole building was destroyed. Under the Fire Services Act 1947 fire authorities were

under a statutory duty, among other things, to secure the services for their area of a fire brigade and

equipment, such as necessary to meet efficiently all normal requirements, and to take all reasonable

measures to ensure that an adequate supply of water was available for use in case of fire. The owners of the

chapel sued the fire authority for negligence and breach of statutory duty. They alleged that there ought to

have been a proper system of inspection to ensure that hydrants were in working order and that the fire crew

were at fault in failing to locate some of the hydrants sooner.

[75] The Court of Appeal upheld decisions to allow the claim in the Hampshire case but to dismiss the

claims in the London and Yorkshire cases. The difference was that in the Hampshire case the fire brigade

aggravated the situation by causing the sprinkler system to be turned off, whereas in the other cases the

failures of the fire brigade made things no worse than they were. In drawing that distinction the court applied

the reasoning of the House of Lords in Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430, 455

(per Lord Blackburn) and East Suffolk Rivers Catchment Board v Kent [1941] AC 74, [1940] 4 All ER 527, 39

LGR 79. In the Hampshire case the court also drew an analogy with Rigby v Chief Constable of

Northamptonshire and Knightley v Johns, where the rescue service created additional danger.

[76] There are two Scottish decisions at first instance in fire brigade cases in which the Lord Ordinary took a

different direction: Duff v Highlands and Islands Fire Board 1995 SLT 1362n and Burnett v Grampian Fire

and Rescue Services [2007] CSOH 3, 2007 SLT 61, 2007 SCLR 192. In Duff the fire service attended a

house fire and apparently extinguished it. After they left, fire broke out again destroying the property and the

house next door. Lord Macfadyen dismissed the claim for want of proof of negligence, but he said that he

would have rejected the defenders' argument that they could not be held liable for damage which would have

occurred if they had done nothing.

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[77] Duff was followed by Lord Macphail in Burnett. That was a similar case in which a fire re-ignited after

the fire brigade had left. On a preliminary plea by the defenders to the relevancy of the pursuer's averments,

Lord Macphail declined to follow the reasoning of the Court of Appeal in Capital & Counties plc v Hampshire

County Council and ruled that the case should go to trial. He said that the law of Scotland does not draw a

distinction between acts and omissions comparable to that which appeared to exist in the English law of tort,

and that the decision in Capital & Counties plc v Hampshire County Council did not represent the law of

Scotland (paras 34 and 48).

[78] Burnett was cited in Mitchell v Glasgow City Council [2009] UKHL 11, [2009] AC 874, [2009] 3 All ER

205, to which I refer below. Burnett was not mentioned in the judgments, but the distinction between acts or

omissions was central to Lord Hope's reasoning, and he observed that the law of liability for negligence has

developed on common lines both north and south of the Border (para 25).

[79] In OLL Ltd v Secretary of State for Transport [1997] 3 All ER 897, [1997] NLJR 1099 May J struck out

claims against the Coastguard for negligence in responding to a 999 call. The Coastguard is a non-statutory

public authority with responsibility for organising and coordinating search and rescue missions on the coast

and at sea. The claims arose from a tragic incident in which a party of children and teachers, under the

supervision of instructors from an adventure centre, got into difficulties on a canoeing trip. The Coastguard

was alerted but several hours passed before all the members of the party were rescued. Some of the

children died and others suffered severe hypothermia. It was alleged that the Coastguard was negligent in

that it was slow to launch a search and rescue operation and misdirected a lifeboat and a helicopter about

where they should search. In striking out the claims the judge applied the reasoning in Capital & Counties plc

v Hampshire County Council. He rejected the argument that the misdirection of searchers was analogous to

the fire brigade turning off the sprinkler system in the Hampshire case, because it did not positively increase

the danger to the canoeists. It was similar to a fire brigade sending one of its fire engines to the wrong

address.

[80] In Van Colle and Smith Lord Bingham reserved his opinion about the correctness of Capital & Counties

plc v Hampshire County Council and disapproved OLL Ltd v Secretary of State for Transport. But he was

alone in criticising them, and he did so in the context of formulating his liability principle which the other

members of the House of Lords rejected.

[81] The position of the ambulance service was considered by the Court of Appeal in Kent v Griffiths [2001]

QB 36, [2000] 2 All ER 474, [2000] 2 WLR 1158. A doctor attended the home of a patient suffering from an

asthma attack and called for an ambulance to take her immediately to hospital. The control replied "Okay

doctor." After 13 minutes the ambulance had not arrived and the patient's husband made a further call. He

was told that an ambulance was well on the way and should arrive in seven or eight minutes. For

unexplained reasons it did not arrive until 40 minutes after the first call. The patient suffered a respiratory

arrest which would have been prevented if the ambulance had arrived in a reasonable time. The patient's

doctor gave evidence that if she had been told that it would take the ambulance service 40 minutes to come,

she would have advised the patient's husband to drive her to hospital and would have gone with them. The

Court of Appeal upheld the trial judge's finding of liability against the ambulance service. It would have been

sufficient to hold that the acceptance of the doctor's request for an ambulance to come immediately gave rise

to a duty of care but Lord Woolf MR (with whom the other members of the court agreed) went further. He

held that the ambulance service, as part of the health service, should be regarded as providing services

equivalent to those provided by hospitals, and not as providing services equivalent to those rendered by the

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police and fire services. Accordingly, the staff of the ambulance service owed a similar duty of care to that

owed by doctors and nurses operating in the health service (para 45).

[82] Courts in other common law jurisdictions have taken various approaches.

[83] In the USA the matter is governed by the tort law of individual states. In New York the Court of Appeal

has held, by a majority, that the police do not owe a duty of care in negligence for the protection of members

of the public, unless they undertake a duty to protect particular members of the public and expose them

without adequate protection to risks which materialise: Riss v City of New York 22 NY 2d 579, 240 NE 2d

860 (1968), distinguishing Schuster v City of New York 5 NY 2d 75, 180 NYS 2d 265, 154 NE 2d 534 (1958).

Similarly, in the case of emergency calls, the position generally appears to be that the police will owe a duty

of care only if the call handler gives an explicit assurance on which the caller relies: Cuffy v City of New York

69 NY 2d 255 (1987); Noakes v City of Seattle 77 Wash App 694, 895 P2d 842, 845 (1995); Perkins v City of

Rochester 641 F Supp 2d 168 (2009).

[84] In South Africa, the leading case is the decision of the Constitutional Court in Carmichele v Minister of

Safety and Security (2001) 12 BHRC 60. The Applicant was brutally attacked by a man awaiting trial for

attempted rape. The police and prosecutor had recommended his release on bail despite a history of sexual

violence. The Applicant sued the ministers responsible for the police and prosecution service, alleging that

they had negligently failed to see that the magistrate was properly informed about the risk he posed to

women in the vicinity of his home, including the Applicant. Her claim was dismissed by the High Court and its

decision was upheld by the Supreme Court of Appeal, but she succeeded on appeal to the Constitutional

Court, relying on a provision in s 39(2) of the constitution which required the courts when developing the

common law to "promote the spirit, purport and objects of the Bill of Rights". The Constitutional Court

decided that it would not be appropriate for itself to determine whether the law of delict required to be

developed so as to afford a right to the Applicant to claim damages if the police or prosecutor were negligent.

It said that it was by no means clear how the constitutional obligations on the state should translate into

private law duties towards individuals, and that the court would be at a grave disadvantage in deciding the

issue without a fully reasoned judgment of the High Court or Court of Appeal. It set aside the decisions of the

lower courts and remitted the matter to the High Court. The discussion in the judgment is interesting, but the

decision itself is of little help, not only because it left the matter undetermined but because it was based on

the provisions of the South African constitution and Bill of Rights.

[85] In Hamilton v Minister of Safety and Security [2003] 4 All SA 117 the Supreme Court of Appeal held the

police liable to the victim of a shooting for negligently issuing a firearm licence to the attacker, who had a

history of psychosis, personality disorder and alcohol abuse. The agreed statement of facts did not suggest

that the victim was at higher risk than any other member of the public.

[86] In Canada, the Divisional Court of the Ontario High Court refused an application to strike out a claim in

negligence by the victim of a serial rapist against the police for their failure to warn potential victims living in

the area about the risk which they faced: Jane Doe v Metropolitan Toronto (Municipality) Commissioners of

Police 74 OR (2d) 225 (1990), 72 DLR (4th) 580. In a short judgment the court applied Lord Wilberforce's two

stage test in Anns and concluded that the facts pleaded were sufficient to establish a special relationship of

proximity. The Claimant later succeeded at the trial: (1998) 160 DLR (4th) 697.

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[87] In Hill v Hamilton-Wentworth Regional Services Board [2007] 3 SCR 129 a wrongly convicted

defendant sued the police for negligent investigation of the case against him, alleging that he should never

have been a suspect. The Supreme Court held, by a majority, that a duty of care existed between the police

and a suspect in a criminal investigation. McLachlin CJ, giving the judgment of the majority, expressly limited

the judgment to that relationship. She said that it might well be the case that the considerations informing the

analysis of proximity and policy would be different in the case of the relationship between the police and a

victim; and that if a new relationship was alleged to attract liability of the police in negligence in a future case,

it would be necessary to engage in a fresh Anns analysis. She disclaimed reliance on Jane Doe v

Metropolitan Toronto (Municipality) Commissioners of Police, describing it as of little help. She noted that it

was a lower court decision and that debate continued over the content and scope of its ratio (para 27).

[88] In New Zealand the highest authority is the decision of the Supreme Court in Couch v Attorney-General

[2008] 3 NZLR 725. Victims and relatives of victims injured or killed in a robbery claimed damages in

negligence for the alleged failure of the probation service to exercise reasonable care in the supervision of

the offender, who was on licence after release from a prison sentence for aggravated robbery. The victims

were employed at a club where the attacker had been allowed by the probation service to obtain work

experience without the knowledge of the employer and his fellow employees about his background. The

Supreme Court allowed an appeal by the Claimant from the decision of the Court of Appeal that the claim

should be struck out. Its decision was unanimous but there were differences as to the criteria for establishing

a duty of care.

[89] The reasoning of the majority (Blanchard, Tipping and McGrath JJ) was given by Tipping J He took as

his starting point the well-known observation of Dixon J in Smith v Leurs (1945) 70 CLR 256, 262 that it is

exceptional to find a duty in law to control another's actions to prevent harm to strangers, but that special

relations may be the source of a duty of this nature. Tipping J noted that the special relations to which Dixon

J referred were between the defendant and the wrongdoer, but there had additionally to be a special

relationship between the defendant and the Claimant - special in the sense that there was sufficient proximity

between the parties to make it fair, just and reasonable, subject to matters of policy, to impose the duty of

care in issue (para 85).

[90] Tipping J concluded that the power of the probation board over the wrongdoer's employment was

arguably sufficient to establish the necessary relationship between the defendant and the wrongdoer, by

analogy with the Dorset Yacht case. As to the relationship between the defendant and the Claimant, the

necessary proximity criterion would be satisfied if she could show (as was arguable on the facts) that she, as

an individual or a member of an identifiable and sufficiently delineated class, was the subject of a distinct and

special risk of suffering harm. The necessary risk must be distinct in the sense of being clearly apparent, and

it must be special in the sense that the Plaintiff's individual circumstances, or membership of the necessary

class, rendered her particularly vulnerable (para 112). If the requisite proximity was established, Tipping J

said that it would be necessary to address finally the question of policy, but that should be done when all the

facts had been examined (para 130).

[91] Elias CJ and Anderson J preferred a more expansive formulation based on the application of Anns.

[92] In Australia, the High Court held in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR

254 that the proprietors of a shopping centre owed no duty of care towards visitors to protect them against

the risk of attack in the car park by taking steps to see that it was properly lit. The proprietors were not

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responsible for controlling the behaviour of the attackers, unlike the prison officers in the Dorset Yacht case

who were responsible for controlling the activities of the young offenders in their charge.

[93] In Sullivan v Moody (2001) 207 CLR 562 the High Court held that medical professionals and social

workers involved in the investigation of child sex abuse owed no duty of care towards the suspects. The

court cited the decision of the House of Lords in Hill in support of the proposition that the conduct of a police

investigation involves a variety of decisions on matters of policy and discretion, including decisions as to

priorities, and that it is inappropriate to subject those decisions to a common law duty of care.

[94] The Irish courts have consistently followed Hill in holding that the police owe no private law duty of care

in respect of their investigatory or prosecutorial functions: Lockwood v Ireland [2010] IEHC 403; LM v

Commissioner of An Garda Siochana [2011] IEHC 14 and AG v JK, Minister for Justice Equality & Law

Reform [2011] IEHC 65.

[95] In relation to the Convention, Ms Monaghan relied particularly on the decision of the Strasbourg court in

Opuz v Turkey (2009) 50 EHRR 695, 27 BHRC 159, [2009] ECHR 33401/02. The Applicant and her mother

suffered repeated violence from the Applicant's partner, which they reported to the police. He was charged

with offences including attempted murder and threatening to kill, but he was released on bail. While awaiting

trial he murdered the Applicant's mother. He was released from prison pending an appeal, and the Applicant

complained that she was given inadequate protection. The court held that there were violations of arts 2 and

3 and gender-based discrimination in violation of art 14 read in conjunction with arts 2 and 3. The court

concluded that domestic violence towards women was in practice tolerated by the authorities, and that the

remedies relied on by the government in its argument did not function effectively.

[96] The Claimants and the interveners also relied on the judgment of Green J in DSD v Commissioner of

Police of the Metropolis [2014] EWHC 436 (QB), 178 CL&J 163. The Claimants were victims of a serial

rapist. They succeeded in claims brought against the police under the Human Rights Act and arts 3 and 8 of

the Convention. There was no claim at common law. In his judgment Green J carried out a detailed analysis

of the Strasbourg jurisprudence regarding the nature and scope of the investigative duty of the police under

art 3. The Claimants and interveners submitted that his analysis strengthens the case for a common law duty

of the scope for which they respectively contend. Green J's judgment is under appeal.

ISSUES 1 AND 2: DID THE POLICE OWE A DUTY OF CARE TO MS MICHAEL ON RECEIVING HER 999

CALL?

[97] English law does not as a general rule impose liability on a defendant (D) for injury or damage to the

person or property of a Claimant (C) caused by the conduct of a third party (T): Smith v Littlewoods

Organisation Ltd [1987] AC 241, [1987] 1 All ER 710, [1987] 2 WLR 480, 270 (a Scottish appeal in which a

large number of English and Scottish cases were reviewed). The fundamental reason, as Lord Goff

explained, is that the common law does not generally impose liability for pure omissions. It is one thing to

require a person who embarks on 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.

[98] The rule is not absolute. Apart from statutory exceptions, there are two well recognised types of

situation in which the common law may impose liability for a careless omission.

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[99] The first is where D was in a position of control over T and should have foreseen the likelihood of T

causing damage to somebody in close proximity if D failed to take reasonable care in the exercise of that

control. Dorset Yacht is the classic example, and in that case Lord Diplock set close limits to the scope of the

liability. As Tipping J explained in Couch v Attorney-General, this type of case requires careful analysis of

two special relationships, the relationship between D and T and the relationship between D and C. I would

not wish to comment on Tipping J's formulation of the criteria for establishing the necessary special

relationship between D and C without further argument. It is unnecessary to do so in this case, since Ms

Michael's murderer was not under the control of the police, and therefore there is no question of liability

under this exception.

[100] The second general exception applies where D assumes a positive responsibility to safeguard C

under the Hedley Byrne principle, as explained by Lord Goff in Spring v Guardian Assurance plc. It is not a

new principle. It embraces the relationships in which a duty to take positive action typically arises: contract,

fiduciary relationships, employer and employee, school and pupil, health professional and patient. The list is

not exhaustive. This principle is the basis for the Claimants' main submission, to which I will come (issue 3).

There has sometimes been a tendency for courts to use the expression "assumption of responsibility" when

in truth the responsibility has been imposed by the court rather than assumed by D. It should not be

expanded artificially.

[101] These general principles have been worked out for the most part in cases involving private litigants,

but they are equally applicable where D is a public body. Mitchell v Glasgow City Council is a good example.

The victim and T were secure tenants of D and were next door neighbours. On a number of occasions T

directed abuse and threats to kill at the victim, which he reported to D. D summoned T to a meeting and

threatened him with eviction, without informing the victim. Soon afterwards T attacked the victim, causing

fatal injuries. The victim's widow and daughter sued D, alleging negligence in failing to warn him of the

meeting with T. The House of Lords held that D was not under a duty to do so, applying the principle in Smith

v Littlewoods Organisation Ltd. It rejected the pursuers' arguments that D's relationship with its tenant T was

analogous to the relationship of D and T in Dorset Yacht or that D assumed a responsibility to protect the

victim from T. Mere foreseeability was not enough.

[102] It is true that the categories of negligence are never closed (Heaven v Pender (1883) 11 QBD 503, 47

JP 709, 52 LJQB 702), and it would be open to the court to create a new exception to the general rule about

omissions. The development of the law of negligence has been by an incremental process rather than giant

steps. The established method of the court involves examining the decided cases to see how far the law has

gone and where it has refrained from going. From that analysis it looks to see whether there is an argument

by analogy for extending liability to a new situation, or whether an earlier limitation is no longer logically or

socially justifiable. In doing so it pays regard to the need for overall coherence. Often there will be a mixture

of policy considerations to take into account.

[103] From time to time the courts have looked for some universal formula or yardstick, but the quest has

been elusive. And from time to time a court has used an expression in explaining its reasons for reaching a

particular decision which has then been squashed and squeezed in other cases where it does not fit so aptly.

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[104] Lord Wilberforce's two-stage formula in Anns appeared at first to usher in a new era of development in

the law of negligence, in which prima facie liability at the first stage was drawn very widely but could be

negated or cut down by policy considerations at the second stage.

[105] The two-stage formula was stated in terms of general application, but it had particular implications for

public authorities, because they have a wide range of duties and responsibilities which would be likely to

bring them within the first stage of Lord Wilberforce's formula.

[106] Doubts about the Anns formula were expressed by the High Court of Australia in Sutherland Shire

Council v Heyman (1985) 60 ALR 1 and echoed in subsequent English decisions. In Caparo plc v Dickman

[1990] 2 AC 605 Lord Bridge (with whom Lords Roskill, Ackner and Oliver of Aylmerton agreed) emphasised

the inability of any single general principle to provide a practical test which could be applied to every situation

to determine whether a duty of care is owed and, if so, what is its scope. He said, at pp 617-618, that there

must be not only foreseeability of damage, but there must also exist between the party owing the duty and

the party to whom it is owed a relationship characterised by the law as one of "proximity" or "neighbourhood",

and the situation should be one in which the court considers it fair, just and reasonable that the court should

impose a duty of a given scope on one party for the benefit of the other. He added that the concepts both of

"proximity" and "fairness" were not susceptible of any definition which would make them useful as practical

tests, but were little more than labels to attach to features of situations which the law recognised as giving

rise to a duty of care. Paradoxically, this passage in Lord Bridge's speech has sometimes come to be treated

as a blueprint for deciding cases, despite the pains which the author took to make clear that it was not

intended to be any such thing.

[107] The Anns formula was finally disapproved in Murphy v Brentwood District Council [1991] 2 EGLR 145,

[1991] 38 EG 218. The particular question in that case was whether the owner of a house built with defective

foundations was owed a duty of care by the local authority which passed the plans. The House of Lords held

that he was not. The property was the Plaintiff's home and it would have cost more than half of its value in

good condition to repair the damage caused by the defective foundations. Lord Bridge observed that there

might be cogent reasons of social policy for imposing liability on the authority, but that the shoulders of a

public authority were only broad enough to bear the loss because they were financed by the public at large,

and that it was pre-eminently a matter for the legislature whether these policy reasons should be accepted as

sufficient for imposing on the public the burden of providing compensation for the Plaintiff's private loss.

Similarly Lord Oliver said that it would not be right for the courts to create new principles in order to fulfil a

social need in an area of consumer protection where there was legislation.

[108] Similar considerations underlie decisions in cases not about economic loss: see Stovin v Wise [1996]

3 All ER 801, 95 LGR 260, [1996] 3 WLR 388 and Gorringe v Calderdale Metropolitan Borough Council

[2004] UKHL 15, [2004] 2 All ER 326, [2004] 1 WLR 1057. Both were personal injury cases arising from road

accidents.

[109] In Stovin v Wise a highway authority knew that a road junction was dangerous and that the cause of

the danger could be removed simply and at little expense. A bank of earth on the corner of the junction

obstructed the view of motorists turning right from one road into the other. The highway authority did not own

the land but had a statutory power to remove the bank. After there had been a number of accidents it

decided to take action. It wrote to the landowner with a proposal to realign the junction but did nothing more

and the matter went to sleep until another accident happened. A motorist collided with a motorcyclist whom

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she had not been able to see until it was too late. The motorist accepted liability to the motorcyclist but

claimed a contribution from the highway authority for its negligence. At the trial the judge found the highway

authority liable and ordered it to pay a contribution of 30%. On appeal the sole issue was whether the

highway authority owed to the injured person a duty of care. The House of Lords by a majority held that it did

not.

[110] Lord Hoffmann (with whom Lords Goff and Jauncey of Tullichettle agreed) observed that it is one thing

for a public authority to provide a service at the public expense, and quite another to require the public to pay

compensation when a failure to provide the service has resulted in a loss. Apart from possible cases

involving reliance on a representation by the authority, the same loss would have been suffered if the service

had not been provided in the first place, and to require payment of compensation would impose an additional

burden on public funds. There would, he said, have to be exceptional grounds for a court to hold that the

policy of a statute required compensation to be paid because a power was not exercised.

[111] In Gorringe v Calderdale Metropolitan Borough Council the House of Lords held that the general

public law duty of a highway authority under the Road Traffic Act 1988 for the prevention of road accidents

did not give rise to a private law duty of care to provide road warnings to alert motorists of hazards. Lord

Hoffmann (with whom Lords Scott of Foscote, Rodger and Brown agreed) referred to the fact that in Stovin v

Wise the majority left open the possibility that there might somewhere be a statutory power or public duty

which generated a common law duty, but he went on to say that he found it difficult to imagine a case in

which a common law duty could be founded simply upon the failure (however irrational) to provide some

benefit which a public authority has a public law duty to provide (paras 31 to 32). He distinguished that

situation from cases where a public authority did acts or entered into relationships or undertook

responsibilities giving rise to a duty of care on an orthodox common law foundation (para 38).

[112] In some areas, such as health care and education, public authorities provide services which involve

relationships with individual members of the public giving rise to a recognised duty of care no different from

that which would be owed by any other entity providing the same service. A hospital and its medical staff

owe the same duty to a patient whether they are operating within the national health service or the private

sector (Roe v Minister of Health [1954] 2 QB 66, [1954] 2 All ER 131, [1954] 2 WLR 915). A school and its

teaching staff owe the same duty to a pupil whether it is a state maintained school or a private school

(Woodland v Swimming Teachers Association [2013] UKSC 66, [2014] AC 437, [2014] 1 All ER 482).

Educational psychology is a professional service linked to education. An organisation which provides an

educational psychology service, and its educational staff, owe the same duty to a pupil whether they are

operating in the public or the private sector (X (Minors) v Bedfordshire County Council [1995] 2 AC 633,

[1995] 3 All ER 353, [1995] 3 WLR 152).

[113] Besides the provision of such services, which are not peculiarly governmental in their nature, it is a

feature of our system of government that many areas of life are subject to forms of state controlled licensing,

regulation, inspection, intervention and assistance aimed at protecting the general public from physical or

economic harm caused by the activities of other members of society (or sometimes from natural disasters).

Licensing of firearms, regulation of financial services, inspections of restaurants, factories and children's

nurseries, and enforcement of building regulations are random examples. To compile a comprehensive list

would be virtually impossible, because the systems designed to protect the public from harm of one kind or

another are so extensive.

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[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. Examples at the highest level include Yuen Kun Yeu v Attorney-General of Hong

Kong [1988] AC 175, [1987] 2 All ER 705, [1987] 3 WLR 776 and Davis v Radcliffe [1990] 2 All ER 536,

[1990] BCLC 647, [1990] 1 WLR 821 (no duty of care owed by financial regulators towards investors),

Murphy v Brentwood District Council (no duty of care owed to the owner of a house with defective

foundations by the local authority which passed the plans), Stovin v Wise and Gorringe v Calderdale

Metropolitan Borough Council (no duty of care owed by a highway authority to take action to prevent

accidents from known hazards).

[116] The question is therefore not whether the police should have a special immunity, but whether an

exception should be made to the ordinary application of common law principles which would cover the facts

of the present case.

[117] Ms Monaghan has advanced essentially two arguments in support of the interveners' liability principle.

The first is that the nature and scale of the problem of domestic violence is such that the courts ought to

introduce such a principle to provide protection for victims and a spur to the police to respond to the problem

more effectively. The second is that the common law should be extended in harmony with the obligations of

the police under arts 2 and 3 of the Convention.

[118] I recognise fully that the statistics about the incidence of domestic violence and the facts of individual

cases such as the present are shocking. I recognise also that the court has been presented with fresh

material on the subject. However, I am not persuaded that they should cause the court to create a new

category of duty of care for several reasons.

[119] If the foundation of a duty of care is the public law duty of the police for the preservation of the

Queen's peace, it is hard to see why the duty should be confined to potential victims of a particular kind of

breach of the peace. Would a duty of care be owed to a person who reported a credible threat to burn down

his house? Would it be owed to a company which reported a credible threat by animal rights extremists to its

premises? If not, why not?

[120] It is also hard to see why it should be limited to particular potential victims. If the police fail through

lack of care to catch a criminal before he shoots and injures his intended victim and also a bystander (or if he

misses his intended target and hits someone else), is it right that one should be entitled to compensation but

not the other, when the duty of the police is a general duty for the preservation of the Queen's peace?

Similarly if the intelligence service fails to respond appropriately to intelligence that a terrorist group is

intending to bring down an airliner, is it right that the service should be liable to the dependants of the victims

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on the plane but not the victims on the ground? Such a distinction would be understandable if the duty is

founded on a representation to, and reliance by, a particular individual but that is not the basis of the

interveners' liability principle. These questions underline the fact that the duty of the police for the

preservation of the peace is owed to members of the public at large, and does not involve the kind of close or

special relationship ("proximity" or "neighbourhood") necessary for the imposition of a private law duty of

care.

[121] As to the argument that imposition of the interveners' liability principle should improve the performance

of the police in dealing with cases of actual or threatened domestic violence, the court has no way of judging

the likely operational consequences of changing the law of negligence in the way that is proposed. Mr Bowen

and Ms Monaghan were critical of statements in Hill and other cases that the imposition of a duty of care

would inevitably lead to an unduly defensive attitude by the police. Those criticisms have force. But the court

would risk falling into equal error if it were to accept the proposition, on the basis of intuition, that a change in

the civil law would lead to a reduction of domestic violence or an improvement in its investigation. Failures in

the proper investigation of reports of violence or threatened violence can have disciplinary consequences (as

there were in the present case), and it is speculative whether the addition of potential liability at common law

would make a practical difference at an individual level to the conduct of police officers and support staff. At

an institutional level, it is possible to imagine that it might lead to police forces changing their priorities by

applying more resources to reports of violence or threatened violence, but if so, it is hard to see that it would

be in the public interest for the determination of police priorities to be affected by the risk of being sued.

[122] The only consequence of which one can be sure is that the imposition of liability on the police to

compensate victims of violence on the basis that the police should have prevented it would have potentially

significant financial implications. The payment of compensation and the costs of dealing with claims, whether

successful or unsuccessful, would have to come either from the police budget, with a corresponding

reduction of spending on other services, or from an increased burden on the public or from a combination of

the two.

[123] In support of the argument that the court should develop the common law to encompass the duties of

the police under the Convention, Mr Bowen and Ms Monaghan submitted that consistency between the

common law and the Convention should be encouraged and relied in particular on observations of the Court

of Appeal in D v East Berkshire NHS Trust [2003] EWCA Civ 1151, [2004] QB 558, paras 79-85, [2003] 4 All

ER 796.

[124] There are certainly areas where the Convention has had an influence on the common law. Possibly

the most striking example is in the law of confidentiality, which the courts have developed to include a partial

law of privacy in response to the requirements of art 8 (Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC

457, [2004] 2 All ER 995). But two points should be noted about that. First, the common law had long been

regarded as defective. It was heavily criticised by Bingham LJ in Kaye v Robertson [1991] FSR 62, but the

Court of Appeal held with regret that only Parliament could cure it. The Human Rights Act 1998 provided the

means for reform. In debates on the bill Lord Irvine of Lairg, LC made it clear that in his view the Act would

open the way to the courts developing rights of privacy through art 8, and so it did. Secondly, development of

the law was necessary to comply with art 8, as interpreted by the Strasbourg Court.

[125] The circumstances of the present case are different. The suggested development of the law of

negligence is not necessary to comply with arts 2 and 3. On orthodox common law principles I cannot see a

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legal basis for fashioning a duty of care limited in scope to that of arts 2 and 3, or for gold plating the

Claimant's Convention rights by providing compensation on a different basis from the claim under the Human

Rights Act 1998. Nor do I see a principled legal basis for introducing a wider duty in negligence than would

arise either under orthodox common law principles or under the Convention.

[126] The same argument, that the common law should be developed in harmony with the obligations of

public bodies including the police under the Human Rights Act 1998 and arts 2 and 3 of the Convention, was

advanced in Smith as a ground for holding that the police owed a duty of care to the deceased after he

reported receiving threats. Reliance was similarly placed on the approach of the Court of Appeal in D v East

Berkshire NHS Trust (as noted by Lord Phillips MR, who had delivered the judgment of the Court of Appeal

in that case). Counsel for Mr Smith relied particularly on the analysis of the effect of the Human Rights Act in

D v East Bedfordshire NHS Trust at paras 55 to 87: see the reported argument at [2009] 1 AC 225, 240. The

argument by analogy with that case which presently commends itself to Lady Hale is therefore not a new

argument, but one which failed to persuade the majority in Smith.

[127] The argument was rejected by the House of Lords for reasons given by Lord Hope (paras 81-82), Lord

Phillips (paras 98-99) and most fully by Lord Brown (paras 136 - 139). Lord Brown did not consider that the

possibility of a Human Rights Act claim was a good reason for creating a parallel common law claim, still less

for creating a wider duty of care. He observed that Convention claims had different objectives from civil

actions, as Lord Bingham pointed out in R (Greenfield) v Secretary of State for the Home Department [2005]

UKHL 14, [2005] 2 All ER 240, [2005] 1 WLR 673. Whereas civil actions are designed essentially to

compensate Claimants for losses, Convention claims are intended to uphold minimum human rights

standards and to vindicate those rights. The difference in purpose has led to different time limits and different

approaches to damages and causation. Lord Brown recognised that the violation of a fundamental right is a

very serious thing, but he saw no sound reason for matching the Convention claim with a common law claim.

To do so would in his view neither add to the vindication of the right, nor be likely to deter the police from the

action or inaction which risked violating it in the first place.

[128] It is unnecessary for the purposes of this appeal to decide questions about the scope of art 3 and I

would not wish to influence the Court of Appeal's consideration of the judgment in DSD v Commissioner of

Police of the Metropolis. It does not alter the essence of the argument which was considered and rejected by

the House of Lords in Smith. I am not persuaded that it would be right for the court to depart from that

decision, which itself was consistent with a line of previous authorities.

[129] In support of the narrower liability principle proposed by Lord Bingham in Smith, Mr Bowen submitted

that limitation of a duty of care to A to cases where A has provided the police with apparently credible

evidence that she or he is under a specific and imminent threat to their life or personal safety from a person

whose identity and whereabouts are known would satisfy the requirement of closeness or "proximity". But the

majority in Smith rejected Lord Bingham's formula for reasons which remain cogent. It would be

unsatisfactory to draw dividing lines according to whether the threat is reported by A or by someone else (for

example, in the present case by the man driven home by Ms Michael's murderer before he returned and

killed her); or whether the threat is credible and imminent or credible but not imminent; or whether the

whereabouts of the person making the threat are known or unknown; or whether the threatened violence was

to A's person or property or both. As to the first of those distinctions (whether the threat was reported by A or

someone else), Lord Bingham's own position was ambiguous because his formula confined the duty to a

case where the threat was reported by A, but he also disapproved the decision in OLL Ltd v Secretary of

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State for Transport, in which the concerns about the safety of the children and adults at sea were raised by

other people.

[130] More generally, I would reject the narrower liability principle advocated by the Claimants for the same

reasons as the broader liability principle advocated by the interveners. If it is thought that there should be

public compensation for victims of certain types of crime, above that which is provided under the criminal

injuries compensation scheme, in cases of pure omission by the police to perform their duty for the

prevention of violence, it should be for Parliament to determine whether there should be such a scheme and,

if so, what should be its scope as to the types of crime, types of loss and any financial limits. By introducing

the Human Rights Act 1998 a cause of action has been created in the limited circumstances where the police

have acted in breach of arts 2 and 3 (or art 8). There are good reasons why the positive obligations of the

state under those articles are limited. The creation of such a statutory cause of action does not itself provide

a sufficient reason for the common law to duplicate or extend it.

[131] So far I have been addressing the Appellants' and the interveners' arguments. Lord Kerr advances an

alternative liability principle which he puts in a broader and a narrower form. He acknowledges (at para 144)

that for a duty of care to arise it is necessary to identify a feature (or combination of features) which creates

(or create) a sufficient proximity of relationship between the Claimant and the defendant. The question "Is

there a sufficient proximity of relationship?" is a shorthand way of putting the question posed by Lord Devlin

in Hedley Byrne [1964] AC 465 at p 525 "Is the relationship between the parties in this case such that it can

be brought within a category giving rise to a special duty?" As Lord Devlin observed, the first step in such an

inquiry is to see how far the authorities have gone, for new categories in the law do not spring into existence

overnight. In the earlier part of this judgment I have examined how far the authorities presently go and have

considered whether there should be a new exception to the general principle about omissions to prevent

harm being caused by a third party who is not under the defendant's control.

[132] Lord Kerr's broader proposal (at para 144) is that "proximity of relationship" in the present context

should comprise these elements:

(i) a closeness of association between the Claimant and the defendant, which can but need not necessarily arise from information communicated to the defendant;

(ii) the information should convey to the defendant that serious harm is likely to befall the intended victim if urgent action is not taken;

(iii) the defendant is a person or agency who might reasonably be expected to provide protection in those circumstances; and

(iv) he should be able to provide for the intended victim's protection without unnecessary danger to himself.

[133] Lord Kerr notes that this suggested principle might at first sight appear similar to Lord Bingham's

liability principle, but he observes that his principle, unlike Lord Bingham's, has the ingredient of proximity

built into it as part of what has to be established. This is in my respectful opinion a serious flaw. Whereas

Lord Bingham identified the factors which he considered should give rise to duty of care in law, Lord Kerr's

proposition requires it to be established that the relationship has sufficient closeness (proximity) to amount to

proximity. In this respect it is circular. It leaves the question of closeness or proximity open ended. It amounts

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to saying that there is a relationship of proximity if the relationship is sufficiently close for there to be

proximity.

[134] Lord Kerr says (at para 163) that the nature of the interaction between the parties is critical to the

question whether the necessary proximity exists. He goes on to say (at para 166) that this depends on the

facts of the particular case and that for this reason his proposition at para 144 is loosely drawn (or, as I would

say, circular). It provides no yardstick for answering the question which it poses.

[135] Lord Kerr says that any narrower test would run the risk of producing anomalous results such as the

example which he gives at para 165. In that paragraph he posits the case of a person who through the

negligence of the police is given a false impression that an assurance of timeous assistance has been given,

on which the person relies. If a person is negligently misled by the police into believing that help is at hand,

and acts on what she has negligently been led falsely to believe, she would have a potential claim under the

Hedley Byrne principle. Whether that was so in this case is the subject of issue 3. There is, however, nothing

anomalous in the Hedley Byrne principle itself or in its limitation. The principle established by Hedley Byrne is

that a careless misrepresentation may give rise to a relationship akin to contract under which there is a

positive duty to act. Lord Devlin spoke of "an assumption of responsibility in circumstances in which, but for

the absence of consideration, there would be a contract" and he said that "wherever there is a relationship

equivalent to contract, there is a duty of care" (pp 529-530). To extend the principle to a case in which the

core ingredients were absent would be to cut its moorings.

[136] However, Lord Kerr goes on to advance a narrower liability principle (at para 168). His narrower

proposition is that whether a relationship of proximity exists should depend on whether sufficient information

has been conveyed or is available to the police to alert them to the urgent need to take action which it is

within their power to take; the information must be specific; and the threat must be imminent. It is critical, he

says, that the police know of an imminent threat to a particular individual, and the duty is personalised to the

intended victim.

[137] Lord Kerr's narrower liability principle closely resembles Lord Bingham's liability principle, which was

rejected by a majority of the House of Lords. It presents most of the problems to which I have referred, such

as why a duty should be owed to the intended victim of a drive-by shooting but not to an injured bystander;

why the threat should have to be imminent; and why the victim of a threatened arson attack should be owed

a duty of protection against consequential personal injury, but not the burning down of his home. Lord Kerr

rightly says (at para 181) that the police have been empowered to protect the public from harm. They have

indeed a duty to keep the peace and to protect property, which applies to all potential victims of crime. Lord

Kerr does not subscribe to the interveners' liability principle, and I cannot see a proper basis for holding there

is a private law duty of care within the terms of Lord Kerr's narrower alternative.

ISSUE 3: SHOULD THE POLICE BE HELD TO HAVE ASSUMED RESPONSIBILITY TO TAKE

REASONABLE CARE FOR MS MICHAEL'S SAFETY?

[138] Mr Bowen submitted that what was said by the Gwent call handler who received Ms Michael's 999 call

was arguably sufficient to give rise to an assumption of responsibility on the Hedley Byrne principle as

amplified in Spring v Guardian Assurance plc. I agree with the Court of Appeal that the argument is not

tenable. The only assurance which the call handler gave to Ms Michael was that she would pass on the call

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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. The case is very different from Kent v Griffiths where the call handler gave misleading

assurances that an ambulance would be arriving shortly.

ISSUE 4: WAS THERE ARGUABLY A BREACH OF ART 2?

[139] Lord Pannick submitted that the majority of the Court of Appeal were wrong to uphold Judge Jarman

QC's decision that the art 2 claim should be allowed to proceed to trial. It is a question of fact whether the

Gwent call handler ought to have heard Ms Michael say that her former partner was threatening to return and

kill her, and, if she could not hear clearly what Ms Michael was saying because of distractions, whether she

should have asked Ms Michael to repeat what she was saying. Lord Pannick argued that even if she should

have heard those words, it would not have been enough for a reasonable person to conclude that there was

a real and immediate threat to her life. That is again a question of fact. It would be rare for this court to

reverse concurrent findings of two lower courts on a question of fact and I do not consider that we should do

so in this case. On the contrary, I agree with the majority of the Court of Appeal that the question what the

call handler ought to have made of the 999 call in all the circumstances is properly a matter for investigation

at a trial. It is not necessary to consider separately the position of the South Wales Police, because Lord

Pannick helpfully said that if the cross appeal by Gwent Police failed he would not wish to argue for a

different disposal at this stage in the case of the South Wales Police.

CONCLUSION

[140] I would dismiss the appeal and cross appeal.

LORD KERR:

INTRODUCTION

[141] Three principal reasons have been given for the conclusion that liability should not attach to the police

in this case. The first is that a well-established line of authority dating back to (at least) Hill v Chief Constable

of West Yorkshire [1989] AC 53, [1988] 2 All ER 238, [1988] 2 WLR 1049 precluded such liability. The

second is grounded on what are said to be general principles of common law. And the third depends on

considerations of public policy.

AUTHORITIES

[142] In Hill Lord Keith held that at common law police officers owed the general public a duty to enforce the

criminal law but there were "no specific requirements as to the manner in which the obligation is to be

discharged" (p 59). On that account an intention to create a duty towards individual members of the public

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could not be readily inferred. But such a duty could, in appropriate circumstances, arise. It was not enough

that police could or should have foreseen that harm to an individual would occur. A further ingredient was

required. The nature of that necessary ingredient varied from case to case. In Dorset Yacht Co Ltd v Home

Office [1970] AC 1004, [1970] 2 All ER 294, [1970] 2 WLR 1140 the ingredient was the special relationship

that existed between, on the one hand, prison officers and the borstal boys who carried out the damage to

the boats and, on the other hand, between the prison officers and the owners of the yachts. The prison

officers had brought the borstal boys into the locality where the yachts were moored. In that way they had

created a potential situation of danger for the owners of the yacht. These circumstances supplied the

necessary extra ingredient which allowed a finding of liability to be made. No such features were present in

Hill - per Lord Keith at 62C. As he pointed out, the perpetrator in Hill was not in police custody at any material

time and the victim was "one of a vast number of the female general public who . . . was at no special

distinctive risk . . . unlike the owners of [the] yachts" in the Dorset Yacht case.

[143] Lord Keith went on to suggest that there was another reason, grounded in public policy, that an action

for damages in negligence should not lie against the police. As Lord Toulson has pointed out, Lord Keith

expressed that as a matter of immunity. I will consider the public policy arguments in a later section of this

judgment and will mention in passing the dichotomy that has arisen as to whether police should not be held

liable for the manner in which they discharge their duties because of an immunity or because an extra

ingredient is required beyond foreseeability in order to establish negligence against them. In the meantime, it

can be clearly stated that Lord Keith's formulation of the primary basis on which the Plaintiff failed was that

an extra ingredient such as was present in Dorset Yacht was missing in Hill.

[144] This extra ingredient has been described as a feature which creates a sufficient proximity of

relationship between the Claimant and the defendant. What "proximity of relationship" connotes has, perhaps

understandably, not been precisely defined. It appears to me that it should consist of these elements:

(i) a closeness of association between the Claimant and the defendant, which can be created by information communicated to the defendant but need not necessarily come into existence in that way;

(ii) the information should convey to the defendant that serious harm is likely to befall the intended victim if urgent action is not taken;

(iii) the defendant is a person or agency who might reasonably be expected to provide protection in those circumstances; and

(iv) he should be able to provide for the intended victim's protection without unnecessary danger to himself.

This might, at first sight, appear to approximate to the "liability principle" articulated by Lord Bingham in Van

Colle v Chief Constable of the Hertfordshire Police; Smith v Chief Constable of Sussex Police [2008] UKHL

50, [2009] AC 225, [2008] 3 All ER 977. For reasons that I will give later, I consider that there is a distinct

difference between the two.

[145] This test is criticised on the basis that it is circular. But this is true of any test of proximity and of many

other bases of liability, as in, for instance, the test of proportionality - something is disproportionate if it fails to

strike a proportionate balance. The notion that any proximity standard inevitably involves an element of

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circularity is not new. In an article entitled, The vulnerable subject of negligence law Int JLC (2012) 8(3), 337-

353, at 338-339, Carl Stychin commented:

"The second stage requirement of proximity continues to cause judicial and academic debate

over whether proximity possesses some independent, discernible meaning against which facts

in a novel category can be tested, or whether it represents simply a conclusion that the

necessary relationship of neighbourhood exists between two parties. For critics, proximity 'has

evolved, possibly unavoidably, into an ad hoc device, judicially micro-refined by the particular

facts of cases and the particular idiosyncrasies of the judges hearing them' (Brown, 2005, p

162) and 'gives no practical or even theoretical guidance' (p 164). For others, it provides a

useful device by which legal reasoning can be structured. It is not a formulaic test, but a

'meaningful definitional element' (Kramer, 2003, p 72), 'a conduit for the application of

community standards' about responsibility (p 72), and 'unequivocal as indicators of the

presence or absence of a substantial ability on the part of the defendant to cause injury to the

Claimant' (Witting, 2005, p 39). Furthermore, as a wrapper for a range of diverse factors, some

argue that proximity has wrongly allowed policy concerns centring on distributive justice to

infiltrate what should be an inquiry focused on the relationship between two parties (Beever,

2007). As a consequence, it is claimed that proximity has opened the door to the balancing of

two incommensurable types of argument. But even for those sceptical of a clear-cut distinction

between issues of principle and policy, proximity can be 'dangerously misleading' because it

masks the inevitable exercise in judicial balancing (Stapleton, 1998, p 61). Criticism of

proximity thus comes from all sides of the theoretical spectrum."

[146] There is therefore an inevitably pragmatic dimension (or circularity) involved in the proximity principle

but this does not destroy its utility as a standard by which liability is to be judged. In a much cited passage,

Deane J in Sutherland Shire Council v Heyman (1985) 157 CLR 424, at 55/6, 60 ALR 1, 59 ALJR 564 said

this about proximity:

"It involves the notion of nearness or closeness and embraces physical proximity (in the sense

of space and time) between the person or property of the Plaintiff and the person or property of

the defendant, circumstantial proximity such as an overriding relationship . . . of a professional

man and his client and what may (perhaps loosely) be referred to as causal proximity in the

sense of the closeness or directness of the causal connection or relationship between the

particular act or course of conduct and the loss or injury sustained. It may reflect an assumption

by one party of a responsibility to take care to avoid or prevent injury, loss or damage to the

person or property of another or reliance by one party upon such care being taken by the other

in circumstances where the other party knew or ought to have known of that reliance. Both the

identity and the relative importance of the factors which are determinative of an issue of

proximity are likely to vary in different categories of case."

[147] Proximity may in many cases add little to the concept of foreseeability but at root it reflects what

Richardson J described in South Pacific Manufacturing Co Ltd v New Zealand Security Consultants &

Investigations Ltd [1992] 2 NZLR 282, 306, as "a balancing of the Plaintiff's moral claim to compensation for

avoidable harm and the defendant's moral claim to be protected from an undue burden of legal

responsibility" which is exactly what has been the aim of the test for liability which I have proposed. For all,

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therefore, that the test of proximity may be described as circular, it still has a useful role to play. It is clear, for

instance, that it was not present in the Hill case. There was, obviously, no proximity between the police and a

member of the public killed by a criminal whose whereabouts were unknown and who, apparently, randomly

picked out his victim from the female population.

[148] In Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24, [2005] 2 All ER 489, [2005] 1

WLR 1495 Lord Steyn suggested that the principle in Hill's case should be "reformulated in terms of the

absence of a duty of care rather than a blanket immunity" (para 27) but he observed that what he described

as "the core principle" in Hill had remained unchallenged for many years (para 30). The "core principle" is

that there is, in general, no duty of care owed by police to individual members of the public. Significantly,

Lord Steyn had recorded (at para 17) the agreement of counsel that the issues in Brooks should be resolved

in the framework of the principles stated in Caparo Industries plc v Dickman [1990] 2 AC 605, [1990] 1 All ER

568, [1990] BCLC 273 and quoted, apparently with approval, what Lord Bridge had said in that case, at pp

617-618:

"What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any

situation giving rise to a duty of care are that there should exist between the party owing the

duty and the party to whom it is owed a relationship characterised by the law as one of

'proximity' or 'neighbourhood' and that the situation should be one in which the court considers

it fair, just and reasonable that the law should impose a duty of a given scope upon the one

party for the benefit of the other."

[149] Nothing that was said in Brooks, therefore, detracts from the proposition that, provided it is fair, just

and reasonable that a duty should arise, police will be liable where they have failed to prevent foreseeable

injury to an individual which they could have prevented, and there is a sufficient proximity of relationship

between them and the injured person.

[150] Lord Steyn set out a number of policy considerations which, he said, militated against converting the

"ethical value" of police dealing respectfully with members of the public into "general legal duties of care on

the police towards victims and witnesses" - para 30. But I do not construe this passage as casting doubt on

the suggestion that where there was a further ingredient, additional to foreseeability, and sufficient to create

a relationship of proximity, liability could arise, provided that it is fair, just and reasonable that it should. By

general legal duties I understand Lord Steyn to mean a wide-ranging basis for liability. That is not the primary

issue on this appeal, in my opinion. I consider that the question whether there is liability for negligence in this

case should rest principally on the claim that its particular circumstances provided the extra ingredient

required to create the necessary relationship of proximity between the police and the victim and that it is fair,

just and reasonable to find that they are liable to the Appellants. I shall discuss those circumstances later in

this judgment.

[151] The policy considerations which operated in Hill and Brooks were deployed for theoretically different

purposes. In Hill Lord Keith set those out as a justification for an immunity for police against a suit for

negligence by an individual member of the public. In Brooks Lord Steyn's array of public policy arguments

was designed to sustain the conclusion that there was no general duty of care owed by police to members of

the public. But the policy considerations that have been rehearsed in both cases are relevant in deciding

whether, in this particular case, a sufficiently proximate relationship existed between the victim and the police

and whether it is fair, just and reasonable that they should be held liable. In the context of the present

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appeal, therefore, I do not consider it particularly relevant whether the police should not be held liable

because actions in negligence against them require to go further than conventional negligence claims or

because they are immune from liability by dint of their status.

[152] In Van Colle and Smith Lord Bingham at para 42 said that the most favoured test of a defendant's

liability to a Claimant for damage caused by a third party was still that which had been articulated in Caparo.

This was described by Lord Bingham in this way: "it must be shown that harm to [the Claimant] was a

reasonably foreseeable consequence of what [the defendant] did or failed to do, that the relationship of [the

Claimant and the defendant] was one of sufficient proximity, and that in all the circumstances it is fair, just

and reasonable to impose a duty of care on [the defendant] towards [the Claimant]."

[153] Lord Bingham went on, of course, to articulate what he described as "the liability principle". None of

the other members of the Appellate Committee agreed with this as a basis for deciding whether there had

been negligence on the part of the police. It is important to note the terms of this principle, however, in order

to discuss the current state of the law in relation to liability of a defendant for the acts of a third party. This is

how Lord Bingham described the "liability principle", at para 44:

". . . if a member of the public (A) furnishes a police officer (B) with apparently credible

evidence that a third party whose identity and whereabouts are known presents a specific and

imminent threat to his life or physical safety, B owes A a duty to take reasonable steps to

assess such threat and, if appropriate, take reasonable steps to prevent it being executed."

[154] Expressed in this way, the "liability principle" either omits the proximity of relationship and the fair, just

and reasonable components of the Caparo test or treats the relay of the information to the defendant as

supplying those ingredients. If it is the first of these, one can see how it does not accord with the "core

principle" of Hill, although, interestingly, Lord Bingham believed that his liability principle was not "in any way

inconsistent with the ratio" in Hill and Brooks (para 45). If Lord Bingham considered that the provision of

information of the nature described supplied the necessary dimension of proximity and the prerequisite that it

be fair, just and reasonable to found liability, this raises interesting questions as to how those requirements

might be satisfied. Before turning to those questions I must say something about the views of the other

members of the House of Lords who disagreed with Lord Bingham.

[155] Lords Hope, Phillips, Carswell and Brown gave various reasons for disagreeing with Lord Bingham's

liability principle. Lord Hope at para 77 suggested that its adoption would lead to uncertainty in its

application. He asked who was to judge whether the evidence given to the police was credible and whether

the threat was imminent. These were, he said, questions which the police have to deal with "on the spot". If a

judge was to review them it would be on an objective basis and this would lead to defensive policing focused

on preventing or, at least, minimising the risk of civil claims. Lord Phillips raised what he considered to be

practical difficulties in deciding when the principle would apply. Would it apply, for instance, if the evidence

emanated, not from the member of the public under threat, but from some other source; and what if the

threat was specific, but not imminent, or imminent but not specific? And why should the principle be

restricted to a threat to life or physical safety, but not to a threat to property? Lord Carswell agreed with Lord

Hope, whilst observing that he would not disagree with Lord Nicholls who, in Brooks, had said that there

might be exceptional cases in which liability might be imposed. Lord Brown considered that it would be

difficult to limit the liability principle in the way that Lord Bingham had sought to do; he also thought that

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defensive policing was "inevitable"; and that the police should be protected from proceedings that would

involve a great deal of time, trouble and expense.

[156] It will be seen that the reasons given by the majority in Van Colle and Smith partook, for the most part

at least, of policy concerns. None of their speeches addressed directly the question why the relationship

between Mr Smith and the police was not one of sufficient proximity. Of course, following Hill, it was still

necessary, if proximity was established, to consider whether it was fair, just and reasonable to impose

liability on the police. And it appears that it was this latter factor which underlay the dismissal of the appeal

by the majority. But it seems to me that the question of whether it is fair, just and reasonable is better

considered against the background of whether a sufficiently proximate relationship exists. Put simply, if there

is proximity, this is likely to have a bearing on whether it is fair to impose liability. Conversely, if there is not

proximity, the issue of fairness etc is likely to be insignificant. Indeed, it has been suggested that it cannot

ever be "fair, just and reasonable" to impose a duty on a defendant with respect to a given Claimant if the

other stages of the Caparo test are unsatisfied - Peel and Goudkamp, Winfield and Jolowicz on Tort (2014)

19th ed para 5-036.

[157] I believe that it is necessary to return to the true ratio of Hill and Caparo in order to answer the

question whether liability for negligence should be imposed on the police in this case. The core principle of

both cases is that liability should not attach to the police unless there is a relationship of proximity and it is

fair, just and reasonable to impose it. What is meant by proximity; how can a sufficiently proximate

relationship be created; and what circumstances make it fair, just and reasonable for liability to be imposed

are all central to the resolution of the issue.

PROXIMITY AND FAIRNESS

[158] Not only does the answer to the question, "is there a proximate relationship" bear on the matter of

what is fair etc, what is "fair, just and reasonable" tends to blend with the concept of "proximity". In the New

Zealand case of South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Collins [1982] 2

NZLR 282, 306 Richardson J held that the proximity assessment will, at root, reflect "a balancing of the

Claimant's moral claim to compensation for avoidable harm and the defendant's moral claim to be protected

from an undue burden of legal responsibility". This sounds remarkably like a weighing of what is fair and just

as between the parties. And the authors of Clerk and Lindsell on Torts 21st ed (2014), comment at 8 - 16

that an assessment of proximity "will inevitably overlap with considerations of justice between the parties".

[159] As to what is "fair, just and reasonable", Lord Browne-Wilkinson in Barrett v Enfield London Borough

Council [2001] 2 AC 550, 559, [1999] 3 All ER 193, [1999] LGR 473 explained:

"In English law the decision as to whether it is fair, just and reasonable to impose a liability in

negligence on a particular class of would-be defendants depends on weighing in the balance

the total detriment to the public interest in all cases from holding such class liable in negligence

as against the total loss to all would-be Plaintiffs if they are not to have a cause of action in

respect of the loss they have individually suffered."

[160] This passage clearly contemplates that, in deciding what is "fair, just and reasonable", courts are

called on to make judgments that are informed by what they consider to be preponderant policy

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considerations. Some assessment has to be made of what a judge considers the public interest to be; what

detriment would be caused to that interest if liability were held to exist; and what harm would be done to

Claimants if they are denied a remedy for the loss that they have suffered. These calculations are not

conducted according to fixed principle. They will frequently, if not indeed usually, be made without empirical

evidence. For the most part, they will be instinctual reactions to any given set of circumstances.

[161] Similar value judgments are required for decisions on proximity. In Alcock v Chief Constable of South

Yorkshire Police [1992] 1 AC 310, 411, [1991] 4 All ER 907, 8 BMLR 37 Lord Oliver stated that "the concept

of 'proximity' is an artificial one which depends more upon the court's perception of what is the reasonable

area for the imposition of liability than upon any logical process of analogical deduction". Again these are

value judgments, based essentially on what the court considers to be right for the particular circumstances of

the case at the time that the appraisal is being made. It is, I believe, important to be alive to the true nature of

these decisions, especially when one comes to consider the precedent value of earlier cases in which such

judgments have been made. A decision based on what is considered to be correct legal principle cannot be

lightly set aside in subsequent cases where the same legal principle is in play. By contrast, a decision which

is not the product of, in the words of Lord Oliver, "any logical process of analogical deduction" holds less

sway, particularly if it does not accord with what the subsequent decision-maker considers to be the correct

instinctive reaction to contemporaneous standards and conditions. Put bluntly, what one group of judges felt

was the correct policy answer in 2009, should not bind another group of judges, even as little as five years

later.

HOW IS A RELATIONSHIP OF PROXIMITY CREATED?

[162] In light of the dearth of judicial pronouncement on how to approach, at a level of hypothesis, the

question of how a relationship of proximity may be said to exist and in view of Lord Oliver's statement that it

is not susceptible of analogical deduction, one might be tempted to say that "it all depends on the

circumstances". But the law tends to prefer some theoretical rules for the incurring of liability and is wary

about accepting that liability can arise unless the "particular circumstances" can be seen to conform to a

preconceived set of principles. Having said that, the respondents have accepted, correctly in my view, that,

although the rule that the police will not be liable to individual members of the public is a general one, it is not

universal. And they have cited a number of examples where liability has been imposed, all of which, apart

from the voluntary assumption of responsibility category, depend very much on their own facts.

[163] Whether or not it is necessary to propound a set of principles which can be prayed in aid in order to

determine if a particular case constitutes an exception to the general rule, it appears to me incontestable that

a proximity of relationship can be created by interaction between parties such as potential victim and police.

The nature of that interaction, when it has taken place, is critical to the question whether the necessary

degree of proximity exists.

[164] It has been recognised that proximity of relationship can exist where there is a voluntary assumption of

responsibility by the police but in cases where this issue has arisen, rules have been applied to strictly

restrict its ambit. Relying on those cases (Alexandrou v Oxford [1993] 4 All ER 328; Capital & Counties plc v

Hampshire County Council 1997] QB 1004, [1997] 2 All ER 865, 95 LGR 831; and Lord Brown's

observations in Van Colle and Smith at para 135) the respondents argue that unless there was an explicit

promise by the police that they would attend immediately and that Ms Michael had expressly relied on this,

the conditions for voluntary assumption of responsibility would not be in place. Reference is also made to

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decisions of the American courts (Noakes v City of Seattle 77 Wash App 694, 700; 895 P 2d 842, 845 (1995)

and Perkins v City of Rochester 641 F Supp 2d 168 (2009) which, it is said, confirm the approach that there

must be an explicit assurance by the police and express reliance on this by the victim.

[165] One must, I believe, question the logic of this position. Should someone in a vulnerable state, fearing

imminent attack, who believes that an assurance of timeous assistance has been made when, through

negligence on the part of the police, that impression has been wrongly created, be treated differently from

another who has in fact received an explicit assurance of immediate help, if both have relied on what they

believed to be a clear promise that police would attend and avert the apprehended danger? The fact that an

easily imagined example such as this can demonstrate the anomaly of the current state of the law in relation

to voluntary assumption of responsibility indicates that a more expansive (or, at least, a more nuanced)

approach is warranted. But it does more than that. It also illustrates the undesirability of creating a set of

rules that may at first sight appear reasonable but which bring about incongruous results when applied to

cases even slightly different from those in contemplation at the time of their conception.

[166] One is driven therefore to the conclusion that the question whether there is a sufficient relationship of

proximity must be primarily dependent on the particular facts of an individual case. It is for this reason that

the test which I have suggested at para 144 above is loosely drawn. Any more closely defined test runs the

risk of producing anomalous outcomes such as that instanced in the preceding paragraph. Unlike Lord

Bingham's liability principle, however, the ingredient of proximity is not omitted or assumed. It must still be

established. And, of course, the question must also be addressed whether there are particular policy reasons

militating against the imposition of liability in a specific case.

[167] Proximity in this context means, as I have already said, a closeness of association. In the case of the

police it must transcend the ordinary contact that a member of the public has with the police force in general.

But the notion that it can only arise where there has been an express assumption of responsibility by

unambiguous undertakings on the part of the police and explicit reliance on those by the Claimant or victim is

not only arbitrary, it fails to reflect the practical realities of life. When someone such as Ms Michael

telephones the police she is in a highly vulnerable, agitated and frightened state. Is it to be supposed that

there must pass between her and the police representative to whom she speaks a form of words which can

be said to amount to an express assumption of responsibility before liability can arise? That the incidence of

liability should depend on the happenstance of the telephonist uttering words that can be construed as

conveying an unmistakable undertaking that the police will prevent the feared attack is surely unacceptable.

[168] Whether a relationship of proximity can be said to exist should be determined by a close examination

of all the circumstances with a view to discovering whether sufficient information has been conveyed to or is

otherwise available to the police to alert them to the urgent need to take action which it is within their power

to take. That the information be specific and the threat imminent are prerequisites of the proximity

relationship. This answers at least some of Lord Phillips' concerns in Van Colle and Smith. Imprecise

information or indefinite timing as to the materialising of any threat cannot be enough to stimulate the police

to urgent action and, as I see it, this is an essential dimension of the proximity relationship. In essence that

relationship entails the engagement of the police to a response which is out of the ordinary and which is a

direct reaction to the plight of the individual under threat. It does not matter if the information is received from

a source other than the intended victim. What is critical is that the police know of an imminent threat to a

particular individual and that they have the means of preventing that threat and protecting the individual

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concerned. This is personalised to the intended victim and arises because of the quality of the information

which the police have and because they have the capacity to stop the attack.

[169] It is suggested that this formulation is "narrower" than the test set out in para 144 above. I do not

believe that it is. The test in para 144 involves the relay of information to the police sufficient to alert them to

the need to take urgent action. The information must convey to the police the essential message that serious

harm is likely to befall a particular victim. The duty is therefore personalised to that individual. Of necessity,

to fulfil this requirement the information must be specific. The imminence of the threat is implicit in the

requirement that there is a need for urgent action. But all of this is of minor importance. Of greater moment is

the suggestion that this formulation gives rise to problems in the practical application of the test.

[170] I will deal with these supposed difficulties in turn. The first is that the duty as formulated unwarrantably

distinguishes between "the intended victim of a drive-by shooting [and] an injured bystander". I confess to

some difficulty in understanding why these categories of person should be assimilated. In the case of an

injured bystander the police have no notice of impending harm to that individual on which to act. No

circumstances exist in which it might be said that proximity between the bystander and the police has been

created. Such an individual is, of course, entitled to the protection that the police owe to members of the

public generally but, without more, there could be no duty to protect him from stray bullets any more than

there could be a duty on the part of firemen to protect passers-by from dangers caused by a fire which they

were tackling.

[171] Any principle for liability of the police in their dealings with individual members of the public should

seek to strike a measured and careful balance between the interests of the effective administration of

policing and the need to protect vulnerable individuals from serious harm. This will inevitably involve drawing

lines which can be portrayed as arbitrary. But the supposed arbitrariness of the operation of the principle in

practice should not prevent the law from recognising that liability should attach to glaring omissions where

grievous but avoidable consequences ensue. Limiting liability of the police to preventing imminent attack

which they are able to thwart may be open to the charge of being arbitrary but it provides a workable basis

on which they may properly be held responsible without imposing on them an impossible burden.

[172] Likewise, the restriction of liability to personal injury is defensible on this basis. If it is right that persons

such as Ms Michael should be owed a duty of care because of the particular circumstances of her plight, the

law should not shirk from recognising that basis of liability simply because it can be posited that there is no

logical distinction to be drawn between the need to protect property from the need to protect life. In fact, of

course, there is ample reason to distinguish between the two situations. It is entirely right and principled that

the law should accord a greater level of importance to the protection of the lives and physical well-being of

individuals than it does to their property.

WAS THERE A RELATIONSHIP OF PROXIMITY IN THIS CASE?

[173] It is true that, unlike the Borstal boys in the Dorset Yacht case, the murderer of Ms Michael was not in

police custody nor was he under police control at the time that the telephone call from Ms Michael was

received. The murderer was clearly identified, however. Ms Michael was his only intended victim. She had

sought the protection of the police from the man whom she feared would attack her again and who proved, in

the dreadful event, to be her killer. He, as she told the police, had expressed a specific intention to attack

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her. The police had been also told that he had already bitten and injured her. It is not in dispute that he had

made a specific threat to return to her home to attack her again. And she informed the police that his return

was imminent. At this stage in the proceedings it must be assumed that if that information had been acted on

promptly, police would have arrived at her home in time to prevent the murderous attack on her. If a

proximity of relationship can be created where a victim tells police of a specific, imminent attack on her, it is

difficult to imagine what more would be required to create such a relationship than these circumstances. In

fact, however, on the Appellants' case, there is more. It is now clear that Ms Michael said to the police

operator that her ex-boyfriend had threatened to kill her. The operator claims that her memory is that she did

not hear the word, "kill". At this preliminary stage of the proceedings, the Claimants are entitled to assert that

the case should be dealt with on the basis that the operator either did hear or should have heard Ms Michael

say that the threat had been to kill her. In my opinion, there was clearly a sufficient proximity of relationship.

LIABILITY FOR THE ACTS OF THIRD PARTIES AND FOR OMISSIONS

[174] As Lord Toulson states, English law has not generally imposed liability for the acts of a third party

because of the traditional rule that the common law did not normally impose liability for pure omissions. A

number of significant exceptions to that traditional rule have been recognised, however, as Lord Toulson has

said. In particular, the assumption of a duty to take positive action is one such exception. As he has also

pointed out, "assumption of responsibility" is in many instances a misnomer because this is in fact a duty

imposed by the court.

[175] In my view, the time has come to recognise the legal duty of the police force to take action to protect a

particular individual whose life or safety is, to the knowledge of the police, threatened by someone whose

actions the police are able to restrain. I am not convinced that this requires a development of the common

law but, if it does, I am sanguine about that prospect. Certainly, I do not believe that rules relating to liability

for omissions should inhibit the law's development to this point.

[176] Tofaris and Steel in their article, Police Liability in negligence for failure to prevent crime: Time to Re-

think, (Legal Studies Research Paper Series 39/2014, July 2014) define what they describe as the

"omissions principle" in the following way: A is not under a duty to take care to prevent harm occurring to B

through a source of danger not created by A unless either (i) A has assumed a responsibility to protect B

from that danger, (ii) A has a special level of control over that source of the danger, or (iii) A's status creates

an obligation to protect B from that danger.

[177] In support of this principle, Lord Hoffmann in Stovin v Wise [1996] AC 923, 943, [1996] 3 All ER 801,

95 LGR 260 said that "it is less of an invasion of an individual's freedom for the law to require him to consider

the safety of others in his actions than to impose upon him a duty to rescue or protect". As Tofaris and Steel

point out, it is at least questionable that it is particularly valuable to the freedom of a public authority that it

should be permitted to negligently fail to assist an identified individual who is at serious risk of physical injury.

Whereas it is arguable that a private individual's freedom has an intrinsic value in its contribution to an

autonomous life, the value of the state's freedom is instrumental and lies in the contribution that it makes to

the fulfilment of its proper functions.

[178] The common law has historically required professional persons carrying out a skill to do so with

reasonable care and skill. As Tindal CJ put it in Lanphier v Phipos (1838) 8 C & P 475, 479, [1835-42] All ER

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Rep 421 "Every person who enters into a learned profession undertakes to bring to the exercise of it a

reasonable degree of care and skill. He does not undertake, if he is an attorney, that at all events you shall

gain your case, nor does a surgeon undertake that he will perform a cure, nor does he undertake to use the

highest possible degree of care and skill."

[179] In all manner of fields if the professional fails to act with due care and skill, he or she will be liable for

any damage caused by their negligence. This is justified on a number of bases; it attributes loss to the

person who caused it, it locates compensation in the private rather than the public sector and, arguably, the

risk of litigation improves professional standards. The principle holds true even where professionals are

acting in response to the acts of third parties. Other emergency services can be liable for their negligence,

provided there is sufficient foreseeability and proximity (Kent v Griffiths [2001] QB 36, [2000] 2 All ER 474,

[2000] 2 WLR 1158; Capital & Counties plc v Hampshire County Council [1997] QB 1004, [1997] 2 All ER

865, 95 LGR 831). Why should the police be an exception?

[180] It is suggested that the police do not constitute an exception but rather that their exemption from

liability is soundly based on the general rule that omissions to act (particularly in relation to actions of a third

party) do not give rise to liability. I propose, however, that the cases on which this claim rests can be readily

distinguished. In none of those cases was there a proximity of relationship such as exists in the present

appeal. In Stovin v Wise, for instance, the failure to improve safety at a road junction affected all who used

the particular stretch of road. Likewise in Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL

15, [2004] 2 All ER 326, [2004] 1 WLR 1057. Long-standing or pre-existing dangers stemming from actions

of third parties such as in Murphy v Brentwood District Council [1991] 1 AC 398, [1990] 2 All ER 908, 89 LGR

24 or the geography of the local area which lay within the public authority's power to mitigate are of a

completely different character from cases where a specific, urgently communicated threat has been imparted

to the public agency with the resources and capacity (as well as the public duty) to protect the individual

against whom it has been made.

[181] To find that no duty arises on the facts of the present case requires us to squarely confront the

consequence of such a finding. If the police force had not negligently downgraded the urgency of Ms

Michael's call, on the facts as they are known at present, it is probable that she would still be alive. While the

police are not responsible for the actions of her murderer, if the allegations made against them are

established, police played a direct, causative role in her death as a result of their negligence. If they were to

be found liable for such negligence, would this be so different from the liability of the doctor of a patient who

fails to provide life-saving drugs to prevent an aggressive condition in the necessary time? The police have

been empowered to protect the public from harm. They should not be exempted from liability on the general

common law ground that members of the public are not required to protect others from third party harm; such

protection of autonomy for individuals is not appropriate for members of a force whose duty it is to provide

precisely the type of protection from the harm that befell Ms Michael. This is the essential and critical

obligation of the police force. Any other professional would be liable for inaction with such grievous

consequences. So also should be the police.

PUBLIC POLICY

[182] ". . . the courts in general . . . ought to think very carefully before resorting to public policy

considerations which will defeat a claim that ex hypothesi is a perfectly good cause of action. It has been

said that public policy should be invoked only in clear cases in which the potential harm to the public is

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incontestable, that whether the anticipated harm to the public will be likely to occur must be determined on

tangible grounds instead of on mere generalities and that the burden of proof lies on those who assert that

the court should not enforce a liability which prima facie exists." These words of Lord Lowry in Spring v

Guardian Assurance plc [1995] 2 AC 296, 326, [1994] 3 All ER 129, [1994] IRLR 460 are entirely pertinent

today.

[183] Where police have been informed that a member of the public is about to be attacked and they have

the capacity to prevent that, the proposition that they should not be held liable because of public policy

considerations should be subject to the test which Lord Lowry articulated. Is the anticipated "harm" to the

public incontestable? Is it based on tangible grounds rather than mere generalities? Has the burden of

establishing the proposition been discharged?

[184] I agree with Lord Toulson that it is difficult to predict with confidence what the operational

consequences would be if liability for police negligence was recognised. But the difficulty in predicting

whether problems may be encountered should not prompt a refusal to recognise a liability which, by all

conventional norms, should be found to exist. A large part of that difficulty stems from the lack of empirical

evidence to support any of the feared outcomes such as have been adumbrated in Hill, Brooks and Smith

and Van Colle. The lack of empirical evidence led to the Canadian Supreme Court's distinguishing of Hill in

Hill v Hamilton-Wentworth Regional Police Services Board [2007] 3 SCR 129, 2007 SCC 41. And the

absence of such evidence was also a key factor in the decision to remove the immunity of advocates in

Arthur JS Hall & Co v Simons [2002] 1 AC 615, [2000] 3 All ER 673, [2000] 2 FCR 673, Lord Steyn at 682D

describing the claim that fear of unfounded claims might have a negative effect on the conduct of advocates

as "a most flimsy foundation, unsupported by empirical evidence".

[185] The Law Commission's Scoping Report on Remedies against Public Bodies (2006) also commented

on the lack of empirical evidence to support or contradict the claim that recognition of liability for police

negligence would result in a diversion of manpower - paras 3.52-53. At the very least, predictions of a

worsening in standards as a result of the availability of judicial review were not borne out. In para 4.25 of its

full report Administrative Redress: Public Bodies and The Citizen (2010) (Law Com No 322), the Law

Commission referred to the study published by Professor Sunkin and others which suggested that judicial

review litigation may act as "a modest driver to improvements in the quality of local government services".

[186] Set against the poverty - or complete absence - of evidence to support the claims of dire

consequences should liability for police negligence be recognised is the fundamental principle that legal

wrongs should be remedied. Sir Thomas Bingham MR in X (Minors) v Bedfordshire County Council [1995] 2

AC 633, [1995] 3 All ER 353, [1995] 3 WLR 152 said that the rule of public policy which has first claim on the

loyalty of the law was that wrongs should be remedied. And as Lord Dyson said in Jones v Kaney [2011]

UKSC 13, [2011] 2 AC 398, at para 113, [2011] 2 All ER 671 "The general rule that where there is a wrong

there should be a remedy is a cornerstone of any system of justice. To deny a remedy to the victim of a

wrong should always be regarded as exceptional . . .".

CONCLUSION

[187] I do not consider that policy reasons sufficient to displace this general rule have been established. I

would therefore allow the appeal.

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[188] I would dismiss the cross appeal for the reasons given by Lord Toulson.

LADY HALE (DP):

[189] In what circumstances can the police owe a duty of care to protect an individual member of the public

from harm caused by a third party? There are said to be two objections to imposing such a duty. The first is

the "core principle", recognised in Hill v Chief Constable of West Yorkshire [1989] AC 53, [1988] 2 All ER

238, [1988] 2 WLR 1049 and refined in Brooks v Metropolitan Police Commissioner [2005] UKHL 24, [2005]

2 All ER 489, [2005] 1 WLR 1495, that the police are not liable for negligence in the course of investigating or

preventing crime. That principle is no longer regarded as an "immunity", but as a situation in which, for policy

reasons, no duty of care is imposed by the law. The second is the general principle in the law of negligence,

referred to by S Tofaris and Steel, in their paper on Police Liability in Negligence for Failure to Prevent

Crime: Time to Rethink (University of Cambridge Legal Studies Research Paper Series, Paper No 39/2014),

as the "omissions principle", which they describe (I believe accurately) thus, at p 5 "A is not under a duty to

take care to prevent harm occurring to B through a source of danger not created by A unless either (i) A has

assumed a responsibility to protect B from that danger, (ii) A has a special level of control over that source of

the danger, or (iii) A's status creates an obligation to protect B from that danger."

[190] The second objection is the more serious, for there would be little point in considering the strength and

validity of the policy reasons which led the House of Lords to formulate the core principle in Hill, and to apply

it, not only in Brooks, but also (by a majority) in Smith v Chief Constable of Sussex Police [2008] UKHL 50,

[2009] AC 225, [2008] 3 All ER 977, if the claim were in any event bound to fail under the ordinary principles

of the law of negligence. Those principles, as we see, do not deny any liability for omissions, but impose it

only in limited circumstances. Thus, for example, a parent may be liable for failing to feed, clothe, house or

otherwise protect her child from harm: see Barrett v Enfield London Borough Council [2001] 2 AC 550, [1999]

3 All ER 193, [1999] LGR 473. This is because the status of parent imposes a positive duty, probably at

common law but certainly under s 1 of the Children and Young Persons Act 1933, to care for one's children.

[191] But what of public authorities? They certainly owe positive duties towards the public as a whole, or

towards certain sections of the public, but do they ever owe a duty of care in negligence towards individuals

who suffer harm if they fail to perform those duties? The answer given in cases such as Stovin v Wise [1996]

AC 923, [1996] 3 All ER 801, 95 LGR 260 and Gorringe v Calderdale Metropolitan Borough Council [2004]

UKHL 15, [2004] 2 All ER 326, [2004] RTR 443, is that generally speaking they do not. However, there are

exceptions, and one which I find particularly instructive in this case is that established by the Court of Appeal

in D v East Berkshire NHS Trust [2003] EWCA Civ 1151, [2004] QB 558, [2003] 4 All ER 796.

[192] The House of Lords had held, in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, [1995] 3

All ER 353, [1995] 3 FCR 337, that a local social services authority owed no duty of care towards an

individual child whom it had failed to protect from abuse or neglect in her own home. This was despite the

existence of a clear statutory duty to protect such children. However, following the enactment of the Human

Rights Act 1998, a child who suffered serious harm as a result of such a failure might well have a claim for

breach of her Convention rights: just as the state has a positive duty under art 2 to protect individuals from a

real and immediate risk to life of which it knows or ought to know, it also has a positive duty under art 3 to

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protect individual children from a real and immediate risk of serious ill-treatment or neglect of which it knows

or ought to know: Z v United Kingdom (2001) 34 EHRR 97, [2001] 2 FCR 246, [2001] 2 FLR 612; E v United

Kingdom (2002) 36 EHRR 519, [2002] 3 FCR 700, [2003] 1 FLR 348. Thus a court hearing such a claim

would have to examine the same factual issues which it would have to examine in a negligence claim: "In

these circumstances, the reasons of policy that led the House of Lords to hold that no duty of care towards a

child arises . . . will largely cease to apply. Substantial damages will be available on proof of individual

shortcomings . . ." ([2004] QB 558, para 81).

[193] The court had earlier ([2004] QB 558, para 31) adopted the summary of those policy reasons given by

May LJ in S v Gloucestershire County Council [2001] Fam 313, 329-330, [2000] 3 All ER 346, [2000] 2 FCR

345. These bear a remarkable resemblance to the reasons put forward for the "core principle" in Hill and the

later cases. The first, that it would cut across the statutory scheme for child protection, which depended upon

multi-disciplinary co-operation, does not apply to policing (and in any event was a dubious reason in child

care cases, as the statutory responsibility lay clearly with the local authority). The next four, that the task of

child protection is "extraordinarily delicate", that there was a risk of a more cautious, defensive approach, that

it would divert resources away from providing the social services themselves, and that there were other

remedies for maladministration, all have their parallels in the police cases. The last, that the development of

novel categories of negligence should proceed incrementally by analogy with existing categories, begs the

very question at issue.

[194] In the result, therefore, the Court of Appeal held that there was no longer any good reason to deny the

existence of a duty of care in negligence towards a child harmed by the failure of a local authority to take

appropriate protective action. There was no appeal to the House of Lords against that aspect of the decision

(the appeal against the holding that no duty was owed to the parents of a child who was mistakenly taken

into care was unsuccessful).

[195] The parallels with this case are striking. There is no doubt that the police owe a positive duty in public

law to protect members of the public from harm caused by third parties. In Glasbrook Brothers Ltd v

Glamorgan County Council [1925] AC 270, 23 LGR 61, 89 JP 29, the House of Lords held that the police

have a duty to take all steps which appear necessary for keeping the peace, for preventing crime and for

protecting from criminal injury. The House also approved a statement by Pickford LJ in Glamorgan Coal Co

Ltd v Glamorganshire Standing Joint Committee [1916] 2 KB 206, 229, 14 LGR 419, 80 JP 289, that a party

threatened with violence from another is entitled to protection, whatever the rights and wrong of their dispute.

That this is a duty recognised by the common law rather than imposed by statute should if anything

strengthen rather than weaken the possibility that it may also give rise to duties towards individuals in

negligence.

[196] Equally, there is no doubt that the police may be liable under the Human Rights Act if they fail in their

duties under arts 2 or 3 of the European Convention on Human Rights. This part of the claim is to be sent to

trial. The issues under the Human Rights Act 1998 are not identical to the issues under the law of

negligence, but the existence of a human rights claim means that the policy reasons advanced against the

imposition of a duty in negligence claim have also "largely ceased to apply" in a case such as this, where it is

alleged that a tragic death would have been averted had the police reacted appropriately to Ms Michael's

emergency call.

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[197] It is for those reasons that I would support the analysis put forward by Lord Kerr: the necessary

proximity is supplied if the police know or ought to know of an imminent threat of death or personal injury to a

particular individual which they have the means to prevent. Once that proximity is established, it is fair, just

and reasonable to expect them to take reasonable care to prevent the harm. This is very close to, though

somewhat narrower than, the test proposed by Tofaris and Steel (para 189, above). But it is right to

acknowledge the strength of the arguments which they so carefully develop, in particular the inter-

relationship between the special status and powers of the police to prevent crime and protect people from

harm and the limits placed by the law on the ability of people to protect themselves "A person faced with the

threat of violence is permitted by law to take reasonable measures of self-protection, but beyond that her

only option is to inform the police. In essence, other than reasonably protecting herself, the law obliges her to

entrust her physical safety in the police." (Tofaris and Steel, p 18)

[198] However, in developing the law it is wise to proceed on a case by case basis, and the formulation

offered by Lord Kerr would be sufficient to enable this claim to go to trial at common law as well as under the

Human Rights Act 1998. It is difficult indeed to see how recognising the possibility of such claims could make

the task of policing any more difficult than it already is. It might conceivably, however, lead to some much-

needed improvements in their response to threats of serious domestic abuse. This continues to be a source

of concern to Her Majesty's Inspectorate of Constabulary: see Everyone's Business: Improving the Police

Response to Domestic Abuse (2014). I very much regret to say that some of the attitudes which have led to

the inadequacies revealed in that report may also have crept into the policy considerations discussed in

Smith (by Lord Carswell at para 107 and Lord Hope at para 76). If the imposition of liability in negligence can

help to counter such attitudes, so much the better. But the principles suggested here should apply to all

specific threats of imminent injury to individuals which the police are in a position to prevent, whatever their

source.

[199] I would therefore have allowed the appeal as well as dismissing the cross-appeal.

Appeal and cross-appeal dismissed.

Page 74

Robinson (Appellant) v Chief Constable of West Yorkshire Police (Respondent)

[2018] UKSC 4, (Transcript)

SUPREME COURT

LADY HALE, LORD MANCE, LORD REED, LORD HUGHES, LORD HODGE

12 JULY 2017, 8 FEBRUARY 2018

8 FEBRUARY 2018

N Bowen QC, D Lemer, D Fairgrieve for the Appellant

J Johnson QC, I Skelt for the Respondent

Grieves Solicitors; West Yorkshire Police Legal Services

LORD REED: (with whom Lady Hale and Lord Hodge agree)

(reading the judgment of the Court)

[1] On a Tuesday afternoon in July 2008 Mrs Elizabeth Robinson, described by the Recorder as a relatively

frail lady then aged 76, was walking along Kirkgate, a shopping street in the centre of Huddersfield, when

she was knocked over by a group of men who were struggling with one another. Two of the men were

sturdily built police officers, and the third was a suspected drug dealer whom they were attempting to arrest.

As they struggled, the men knocked into Mrs Robinson and they all fell to the ground, with Mrs Robinson

underneath. She suffered injuries as a result.

[2] The principal question which has to be decided in this appeal is whether the officers owed a duty of care

to Mrs Robinson. The other important question is whether, if they did, they were in breach of that duty. Mr

Recorder Pimm held that the officers had been negligent, but that police officers engaged in the

apprehension of criminals were immune from suit. The Court of Appeal held that no duty of care was owed,

and that, even if the officers had owed Mrs Robinson such a duty, they had not acted in breach of it: [2014]

EWCA Civ 15.

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[3] As will appear, the simple facts of this case have given rise to proceedings raising issues of general

importance. Most of those issues can be decided by applying long-established principles of the law of

negligence. The fact that the issues have reached this court reflects the extent to which those principles have

been eroded in recent times by uncertainty and confusion.

THE FACTS

[4] The events leading to Mrs Robinson's accident began when DS Neil Willan spotted Mr Ashley Williams

apparently dealing drugs in a park in the centre of Huddersfield. He did not attempt to arrest Williams

immediately, as Williams was young and physically fit, and Willan thought that he was unlikely to be able to

arrest him without his running away. He called for backup, and DC Ian Green and DS Damian Roebuck then

made their way to join him.

[5] Williams went to a bookmakers on Kirkgate, and Willan followed him inside. He decided not to attempt

an arrest inside the shop, as there were people there whom he recognised, and he was concerned that

attempting an arrest would endanger both his own safety and that of the customers and staff. Williams then

left the shop and stood outside it. Green and Roebuck then arrived, and another officer, PC Dhurmea,

arrived soon afterwards. Like Willan, they were in plain clothes.

[6] Willan and Roebuck formed a plan to arrest Williams while he was standing outside the bookmakers.

The plan involved Willan and Dhurmea approaching Williams from one direction, taking hold of him and

effecting the arrest, while Roebuck and Green were positioned in the opposite direction, to prevent his

escape and assist once Willan and Dhurmea had taken hold of him. Willan and Dhurmea positioned

themselves up the street from the bookmakers, while Green and Roebuck took up a position some distance

down the street. Kirkgate was moderately busy at the time with pedestrians and traffic. Mrs Robinson was

one of a number of pedestrians walking along the pavement. She passed Willan and Dhurmea, and then

Williams, very shortly after two other pedestrians.

[7] Almost immediately after she passed Williams, and when she was within a yard of him, Willan and

Dhurmea approached him. Mrs Robinson was then in their line of sight. The officers took hold of Williams

and attempted to arrest him. Williams resisted arrest. As the men tussled, they moved towards Mrs Robinson

and collided with her. The initial contact was between her and Williams, who backed into her. She fell over,

and the men fell on top of her. Roebuck and Green arrived three seconds later and assisted in arresting

Williams.

THE PROCEEDINGS BEFORE THE RECORDER

[8] Mrs Robinson issued proceedings for damages for personal injury, on the basis first of the negligence of

the officers, and secondly assault and trespass to the person occasioned by DS Willan. The latter aspect of

the claim is no longer in issue. Following a hearing on liability, the Recorder dismissed the claim.

[9] In relation to the facts, the Recorder relied on CCTV footage of the incident, together with the evidence

of DS Willan, DS Roebuck and DC Green concerning the planning of the arrest. He accepted Willan's

evidence that the officers had identified the risk that Williams would try to run away, and regarded it as

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significant. Willan also said that he was aware of the potential for harm to members of the public if Williams

tried to escape. His evidence was that in any situation it was necessary to consider the risk to those in the

vicinity. He said that if it had appeared to him that someone was in harm's way, he would have walked past

Williams without effecting the arrest. The Recorder noted that that was in accordance with the risk

assessment guidance provided to police officers in relation to arrests in drugs cases, to which he had been

referred in the evidence. Willan said that he had not been aware of Mrs Robinson's presence when he

attempted to arrest Williams.

[10] Willan also gave evidence that there was some urgency in effecting the arrest. He had seen Williams

taking the drugs from a bag secured around his neck. It was important to arrest him while he still had drugs

in his possession. Without the drugs, there was unlikely to be sufficient evidence for a successful

prosecution.

[11] DS Roebuck said that it had taken him and DC Green about three seconds to get from the place where

they had taken up position prior to the attempted arrest to the scene where the other three men were on top

of Mrs Robinson. He said that suspects like Williams could have recognised them as police officers if they

had been any closer. The Recorder did not accept that evidence, which was unsupported by any other

evidence. As far as appeared from the evidence, Roebuck and Green would, he found, just have been two

men walking along the street.

[12] In the light of the evidence, the Recorder found that the decision to arrest Williams at the time and place

selected by the officers involved a foreseeable risk that Mrs Robinson would be injured. She was in very

close proximity to Williams at that moment, she was an elderly lady, and there was a significant and

foreseeable risk that he would try to escape.

[13] In the view of the Recorder, the officers had acted negligently. First, Willan accepted that he ought to

have been taking care for the safety of members of the public in the vicinity. Although Mrs Robinson had just

walked past Williams and was within a yard of him, Willan did not notice her. That was prima facie in breach

of his duty of care. Secondly, in view of the known risk that Williams would try to escape, the officers could

have waited and selected a safer opportunity to effect the arrest. Thirdly, there was a clear need for all four

officers to be present if the arrest was to be carried out safely with pedestrians passing. Roebuck and Green

had however been too far away to assist their colleagues until several seconds had passed. The risk could

have been minimised if they had been closer at the time when the arrest was attempted.

[14] The Recorder held, however, that the decision in Hill v Chief Constable of West Yorkshire [1989] AC 53

had conferred on the police an immunity against claims in negligence. In the light of the decision of the Court

of Appeal in Desmond v Chief Constable of Nottinghamshire Police [2011] EWCA Civ 3; [2011] PTSR 1369,

that immunity was not confined to cases of omission. It therefore applied in the present case.

THE PROCEEDINGS IN THE COURT OF APPEAL

[15] In the Court of Appeal, Hallett LJ considered that "the Caparo test [Caparo Industries plc v Dickman

[1990] 2 AC 605, 617-618] applies to all claims in the modern law of negligence" (para 40). In consequence,

"[t]he court will only impose a duty where it considers it right to do so on the facts" (ibid). The general

principle was that "most claims against the police in negligence for their acts and omissions in the course of

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investigating and suppressing crime and apprehending offenders will fail the third stage of the Caparo test"

(para 46). That is to say, "[i]t will not be fair, just and reasonable to impose a duty" (ibid). That is because

"the courts have concluded that the interests of the public will not be best served by imposing a duty [on] to

individuals" (ibid). The answer to counsel's 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, was that "provided

the police act within reason, the public would prefer to see them doing their job and taking drug dealers off

the street" (para 47). One might observe that if the police are not under a duty of care, then it is irrelevant to

the issue whether they act within reason or not. On the other hand, if they act with reasonable care, then

they will not be in breach of a duty of care, even if an innocent member of the public is injured.

[16] Hallett LJ accepted that the authorities suggested that there might be a number of possible exceptions

to the general principle: cases of outrageous negligence, cases which did not relate to core functions, and

cases where police officers had assumed responsibility for a claimant. The present case did not fall into any

of those categories. It was "a paradigm example of why the courts are loath to impose a duty towards

individual members of the public on the police engaged in their core functions" (para 51).

[17] Hallett LJ added that, even if counsel for Mrs Robinson had been correct in her argument that there

was no immunity from liability where police officers caused direct physical harm to members of the public, it

was in any event clear that Williams was responsible for the harm. This was therefore a claim based on the

officers' failure to prevent Williams from harming Mrs Robinson: in the language used in other cases, it

concerned an omission, rather than a positive act. Such a claim fell at the first hurdle: it was not fair, just or

reasonable to impose liability on those facts.

[18] Furthermore, Hallett LJ considered that there was no proximity between Mrs Robinson and the police

officers, notwithstanding that she had been injured when they fell on top of her. It was not enough to find that

there was a reasonably foreseeable risk of her being physically injured in the course of carrying out the

arrest.

[19] Hallett LJ also added that, had it been necessary, she would have felt obliged to overturn the

Recorder's finding of negligence. In that regard, she criticised him for acting as if he were an expert in the

arrest and detention of suspects. In her own view, DS Willan could not afford to wait. He was bound to

attempt the arrest or risk losing the suspect and the evidence. The delay of three seconds in the other two

officers reaching the scene was hardly worthy of criticism. Arnold J delivered a concurring judgment, and

Sullivan LJ agreed with Hallett LJ.

THE ISSUES

[20] The issues arising from the judgments below and the parties' submissions can be summarised as

follows:

(1) Does the existence of a duty of care always depend on the application of "the Caparo test" to the facts of the particular case?

(2) Is there a general rule that the police are not under any duty of care when discharging their function of investigating and preventing crime? Or are the police generally under a duty of care to avoid causing reasonably foreseeable personal injuries, when such a duty would arise in

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accordance with ordinary principles of the law of negligence? If the latter is the position, does the law distinguish between acts and omissions: in particular, between causing injury, and protecting individuals from injury caused by the conduct of others?

(3) If the latter is the position, is this an omissions case, or a case of a positive act?

(4) Did the police officers owe a duty of care to Mrs Robinson?

(5) If so, was the Court of Appeal entitled to overturn the Recorder's finding that the officers failed in that duty?

(6) If there was a breach of a duty of care owed to Mrs Robinson, were her injuries caused by that breach?

(1) Caparo

[21] The proposition that there is a Caparo test which applies to all claims in the modern law of negligence,

and that in consequence the court will only impose a duty of care where it considers it fair, just and

reasonable to do so on the particular facts, is mistaken. As Lord Toulson pointed out in his landmark

judgment in Michael v Chief Constable of South Wales Police (Refuge and others intervening) [2015] UKSC

2; [2015] AC 1732, para 106, that understanding of the case mistakes the whole point of Caparo, which was

to repudiate the idea that there is a single test which can be applied in all cases in order to determine

whether a duty of care exists, and instead to adopt an approach based, in the manner characteristic of the

common law, on precedent, and on the development of the law incrementally and by analogy with

established authorities.

[22] Caparo was decided in the aftermath of Lord Wilberforce's attempt in Anns v Merton London Borough

Council [1978] AC 728, 751-752 to lay down an approach which could be applied in all situations in order to

determine the existence of a duty of care. That approach had two stages: first, it was necessary to decide

whether there was a prima facie duty of care, based on the foreseeability of harm, and secondly, in order to

place limits on the breadth of the first stage, it was necessary to consider whether there were reasons of

public policy for excluding or restricting any such prima facie duty. That approach had major implications for

public authorities, as they have a multitude of functions designed to protect members of the public from harm

of one kind or another, with the consequence that the first stage enquiry was readily satisfied, and the only

limit to liability became public policy.

[23] Anns led to a period during which the courts struggled to contain liability, particularly for economic loss

unassociated with physical damage or personal injury, and for the acts and omissions of public authorities.

Commenting extra-judicially during that period, Lord Oliver of Aylmerton said that "what has been seen as a

principle of prima facie liability has been prayed in aid in subsequent cases to justify claims for damages

which have become progressively more divorced from common sense and as placing on the defendant a

burden, sometimes virtually insurmountable, of showing some good reason in 'policy' why he should not be

held liable": "Judicial Legislation: Retreat from Anns", Third Sultan Azlan Shah Law Lecture (1988). It was in

the context of the retreat from Anns that emphasis was placed in a number of cases on the concept of

"proximity", and on the idea that it must be fair to impose a duty of care on the defendant.

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[24] In Caparo, Lord Bridge of Harwich noted that, since Anns, a series of decisions of the Privy Council and

the House of Lords, notably in judgments and speeches delivered by Lord Keith of Kinkel (including his

speech in Hill v Chief Constable of West Yorkshire), had emphasised "the inability of any single general

principle to provide a practical test which can be applied to every situation to determine whether a duty of

care is owed and, if so, what is its scope" (p 617). It is ironic that the immediately following passage in Lord

Bridge's speech has been treated as laying down such a test, despite, as Lord Toulson remarked in Michael,

the pains which he took to make clear that it was not intended to be any such thing:

"What emerges [from the post-Anns decisions] is that, in addition to the foreseeability of

damage, necessary ingredients in any situation giving rise to a duty of care are that there

should exist between the party owing the duty and the party to whom it is owed a relationship

characterised by the law as one of 'proximity' or 'neighbourhood' and that the situation should

be one in which the court considers it fair, just and reasonable that the law should impose a

duty of a given scope upon the one party for the benefit of the other. But it is implicit in the

passages referred to that the concepts of proximity and fairness embodied in these additional

ingredients are not susceptible of any such precise definition as would be necessary to give

them utility as practical tests, but amount in effect to little more than convenient labels to attach

to the features of different specific situations which, on a detailed examination of all the

circumstances, the law recognises pragmatically as giving rise to a duty of care of a given

scope." (pp 617-618; emphasis added)

[25] Lord Bridge immediately went on to adopt an incremental approach, based on the use of established

authorities to provide guidance as to how novel questions should be decided:

"I think the law has now moved in the direction of attaching greater significance to the more

traditional categorisation of distinct and recognisable situations as guides to the existence, the

scope and the limits of the varied duties of care which the law imposes. We must now, I think,

recognise the wisdom of the words of Brennan J in the High Court of Australia in Sutherland

Shire Council v Heyman (1985) 60 ALR 1, 43-44, where he said:

'It is preferable, in my view, that the law should develop novel categories of negligence

incrementally and by analogy with established categories ...'" (p 618)

It was that approach, and not a supposed tripartite test, which Lord Bridge then proceeded to apply to the

facts before him.

[26] Applying the approach adopted in Caparo, there are many situations in which it has been clearly

established that a duty of care is or is not owed: for example, by motorists to other road users, by

manufacturers to consumers, by employers to their employees, and by doctors to their patients. As Lord

Browne-Wilkinson explained in Barrett v Enfield London Borough Council [2001] 2 AC 550, 560, "Once the

decision is taken that, say, company auditors though liable to shareholders for negligent auditing are not

liable to those proposing to invest in the company ... that decision will apply to all future cases of the same

kind". 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

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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, as Hobhouse LJ recognised in Perrett v

Collins [1999] PNLR 77, 90-91:

"It is a truism to say that any case must be decided taking into account the circumstances of

the case, but where those circumstances comply with established categories of liability, a

defendant should not be allowed to seek to escape from liability by appealing to some vaguer

concept of justice or fairness; the law cannot be re-made for every case. Indeed, the previous

authorities have by necessary implication held that it is fair, just and reasonable that the plaintiff

should recover in the situations falling within the principles they have applied."

[27] It is normally only in a novel type of case, where established principles do not provide an answer, that

the courts need to go beyond those principles in order to decide whether a duty of care should be

recognised. Following Caparo, the characteristic approach of the common law in such situations is to

develop incrementally and by analogy with established authority. The drawing of an analogy depends on

identifying the legally significant features of the situations with which the earlier authorities were concerned.

The courts also have to exercise judgement when deciding whether a duty of care should be recognised in a

novel type of case. It is the exercise of judgement in those circumstances that involves consideration of what

is "fair, just and reasonable". As Lord Millett observed in McFarlane v Tayside Health Board [2000] 2 AC 59,

108, the court is concerned to maintain the coherence of the law and the avoidance of inappropriate

distinctions if injustice is to be avoided in other cases. But it is also "engaged in a search for justice, and this

demands that the dispute be resolved in a way which is fair and reasonable and accords with ordinary

notions of what is fit and proper".

[28] In the present case, Hallett LJ cited the decision of this court in Smith v Ministry of Defence (JUSTICE

intervening) [2013] UKSC 41; [2014] AC 52 as an example of a decision in which there was a focus on the

three ingredients mentioned by Lord Bridge. That was however a case raising a novel legal issue, relating to

the provision of protective equipment to soldiers on active duty, and the scope of combat immunity: it did not

concern an established category of liability. Hallett LJ also relied on a passage in the speech of Lord Steyn in

Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] AC 211, 235, in which he remarked that "the

elements of foreseeability and proximity as well as considerations of fairness, justice and reasonableness

are relevant to all cases". That was a case concerned with the loss of a ship and its cargo as a result of

negligent advice, in which the reasoning was essentially directed to considerations relevant to economic

loss. As Hobhouse LJ observed in Perrett v Collins at p 92:

"Marc Rich should not be regarded as an authority which has a relevance to cases of personal

injury or as adding any requirements that an injured plaintiff do more than bring his case within

established principles. If a plaintiff is attempting to establish some novel principle of liability,

then the situation would be different."

It was in any event made clear in Michael that the idea that Caparo established a tripartite test is mistaken.

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[29] Properly understood, Caparo thus achieves a balance between legal certainty and justice. In the

ordinary run of cases, courts consider what has been decided previously and follow the precedents (unless it

is necessary to consider whether the precedents should be departed from). In cases where the question

whether a duty of care arises has not previously been decided, the courts will consider the closest analogies

in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate

distinctions. They will also weigh up the reasons for and against imposing liability, in order to decide whether

the existence of a duty of care would be just and reasonable. In the present case, however, the court is not

required to consider an extension of the law of negligence. All that is required is the application to particular

circumstances of established principles governing liability for personal injuries.

[30] Addressing, then, the first of the issues identified in para 20 above, the existence of a duty of care does

not depend on the application of a "Caparo test" to the facts of the particular case. In the present case, it

depends on the application of established principles of the law of negligence.

(2) The police

(i) Public authorities in general

[31] Before focusing on the position of the police in particular, it may be helpful to consider the position of

public authorities in general, as this is an area of the law of negligence which went through a period of

confusion following the case of Anns, as explained in paras 22-23 above. That confusion has not yet entirely

dissipated, as courts continue to cite authorities from that period without always appreciating the extent to

which their reasoning has been superseded by the return to orthodoxy achieved first in Stovin v Wise [1996]

AC 923 and then, more fully and clearly, in Gorringe v Calderdale Metropolitan Borough Council [2004]

UKHL 15; [2004] 1 WLR 1057.

[32] At common law, public authorities are generally subject to the same liabilities in tort as private

individuals and bodies: see, for example, Entick v Carrington (1765) 2 Wils KB 275 and Mersey Docks and

Harbour Board v Gibbs (1866) LR 1 HL 93. Dicey famously stated that "every official, from the Prime Minister

down to a constable or collector of taxes, is under the same responsibility for every act done without legal

justification as any other citizen": Introduction to the Study of the Law of the Constitution 3rd ed (1889), p

181. An important exception at common law was the Crown, but that exception was addressed by the Crown

Proceedings Act 1947, s 2.

[33] Accordingly, if conduct would be tortious if committed by a private person or body, it is generally equally

tortious if committed by a public authority: see, for example, Dorset Yacht Co Ltd v Home Office [1970] AC

1004, as explained in Gorringe, para 39. That general principle is subject to the possibility that the common

law or statute may provide otherwise, for example by authorising the conduct in question: Geddis v

Proprietors of Bann Reservoir (1878) 3 App Cas 430. It follows that public authorities are generally under a

duty of care to avoid causing actionable harm in situations where a duty of care would arise under ordinary

principles of the law of negligence, unless the law provides otherwise.

[34] On the other hand, public authorities, like private individuals and bodies, are generally under no duty of

care to prevent the occurrence of harm: as Lord Toulson stated in Michael, "the common law does not

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generally impose liability for pure omissions" (para 97). This "omissions principle" has been helpfully

summarised by Tofaris and Steel, "Negligence Liability for Omissions and the Police" (2016) 75 CLJ 128:

"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."

[35] As that summary makes clear, there are certain circumstances in which public authorities, like private

individuals and bodies, can come under a duty of care to prevent the occurrence of harm: see, for example,

Barrett v Enfield London Borough Council and Phelps v Hillingdon London Borough Council [2001] 2 AC 619,

as explained in Gorringe at paras 39-40. In the absence of such circumstances, however, public authorities

generally owe no duty of care towards individuals to confer a benefit upon them by protecting them from

harm, any more than would a private individual or body: see, for example, Smith v Littlewoods Organisation

Ltd [1987] AC 241, concerning a private body, applied in Mitchell v Glasgow City Council [2009] UKHL 11;

[2009] AC 874, concerning a public authority.

[36] That is so, notwithstanding that a public authority may have statutory powers or duties enabling or

requiring it to prevent the harm in question. A well-known illustration of that principle is the decision of the

House of Lords in East Suffolk Rivers Catchment Board v Kent [1941] AC 74. The position is different if, on

its true construction, the statutory power or duty is intended to give rise to a duty to individual members of the

public which is enforceable by means of a private right of action. If, however, the statute does not create a

private right of action, then "it would be, to say the least, unusual if the mere existence of the statutory duty

[or, a fortiori, a statutory power] could generate a common law duty of care": Gorringe, para 23.

[37] A further point, closely related to the last, is that public authorities, like private individuals and bodies,

generally owe no duty of care towards individuals to prevent them from being harmed by the conduct of a

third party: see, for example, Smith v Littlewoods Organisation Ltd and Mitchell v Glasgow City Council. In

Michael, Lord Toulson explained the point in this way:

"It is one thing to require a person who embarks on 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." (para 97)

There are however circumstances where such a duty may be owed, as Tofaris and Steele indicated in the

passage quoted above. They include circumstances where the public authority has created a danger of harm

which would not otherwise have existed, or has assumed a responsibility for an individual's safety on which

the individual has relied. The first type of situation is illustrated by Dorset Yacht, and in relation to the police

by the case of Attorney General of the British Virgin Islands v Hartwell [2004] 1 WLR 1273, discussed below.

The second type of situation is illustrated, in relation to the police, by the case of An Informer v A Chief

Constable [2013] QB 579, as explained in Michael at para 69.

[38] In Anns, however, it was decided that a local authority owed a duty of care at common law, when

exercising its power to inspect building works, to protect the ultimate occupier of the building from loss

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resulting from defects in its construction. The House of Lords thus held a public authority liable at common

law for a careless failure to confer a benefit, by preventing harm caused by another person's conduct, in the

absence of any special circumstances such as an assumption of responsibility towards the claimant. It added

to the confusion by importing public law concepts, and the American distinction between policy and

operational decisions, into questions concerning duties arising under the law of obligations. Although the

decision was overruled in Murphy v Brentwood District Council [1991] 1 AC 398 on a limited basis (relating to

the categorisation of the type of harm involved), its reasoning in relation to these matters was not finally

disapproved until Stovin v Wise.

[39] The position was clarified in Gorringe v Calderdale Metropolitan Borough Council, which made it clear

that the principle which had been applied in Stovin v Wise in relation to a statutory duty was also applicable

to statutory powers. Lord Hoffmann (with whom Lord Scott of Foscote, Lord Rodger of Earlsferry and Lord

Brown of Eaton-under-Heywood agreed) said that he found it difficult to imagine a case in which a common

law duty could be founded simply on the failure, however irrational, to provide some benefit which a public

authority had power (or a public law duty) to provide (para 32). He was careful to distinguish that situation

from cases where a public authority did acts or entered into relationships or undertook responsibilities giving

rise to a duty of care on an orthodox common law foundation (para 38).

[40] However, until the reasoning in Anns was repudiated, it was not possible to justify a rejection of liability,

where a prima facie duty of care arose at the first stage of the analysis from the foreseeability of harm, on the

basis that public bodies are not generally liable for failing to exercise their statutory powers or duties so as to

confer the benefit of protection from harm. Instead, it was necessary to have recourse to public policy in

order to justify the rejection of liability at the second stage. That was accordingly the approach adopted by

the House of Lords and the Court of Appeal in a series of judgments, including Hill. The need to have

recourse to public policy for that purpose has been superseded by the return to orthodoxy in Gorringe. Since

that case, a public authority's non-liability for the consequences of an omission can generally be justified on

the basis that the omissions principle is a general principle of the law of negligence, and the law of

negligence generally applies to public authorities in the same way that it applies to private individuals and

bodies.

[41] Equally, concerns about public policy cannot in themselves override a liability which would arise at

common law for a positive act carried out in the course of performing a statutory function: the true question is

whether, properly construed, the statute excludes the liability which would otherwise arise: see Gorringe at

para 38 per Lord Hoffmann.

[42] That is not to deny that what might be described as policy considerations sometimes have a role to play

in the law of negligence. As explained earlier, where established principles do not provide a clear answer to

the question whether a duty of care should be recognised in a novel situation, the court will have to consider

whether its recognition would be just and reasonable.

(ii) The police in particular

[43] Turning to consider specifically the position of the police, Lord Toulson explained in the case of Michael

at paras 29-35 that the police owe a duty to the public at large for the prevention of violence and disorder.

That public law duty has a number of legal consequences. For example, the police cannot lawfully charge

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members of the public for performing their duty (Glasbrook Bros Ltd v Glamorgan County Council [1925] AC

270), and a police officer who wilfully fails to perform his duty may be guilty of a criminal offence (R v Dytham

[1979] QB 722). Some members of the public may have standing to enforce the duty, for example in

proceedings for judicial review (R v Commissioner of Police of the Metropolis, Ex p Blackburn [1968] 2 QB

118), but in doing so they are not enforcing a duty owed to them as individuals.

[44] In relation to the question whether, and in what circumstances, a private law duty of care might be owed

by the police to particular individuals, Lord Toulson discussed in Michael the case of Hill, and in particular the

speech of Lord Keith, with whom Lord Brandon of Oakbrook, Lord Oliver and Lord Goff of Chieveley agreed.

Since it is apparent from the judgments below in the present proceedings, and from the submissions to this

court, that Lord Keith's reasoning continues to be misunderstood, it is necessary to consider it once more.

[45] For the purposes of the present case, the most important aspect of Lord Keith's speech in Hill is that, in

the words of Lord Toulson (Michael, para 37), "he recognised that the general law of tort applies as much to

the police as to anyone else". What Lord Keith said was this:

"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." (p 59; emphasis supplied)

The words "like anyone else" are important. They indicate that the police are subject to liability for causing

personal injury in accordance with the general law of tort. That is as one would expect, given the general

position of public authorities as explained in paras 32-33 above.

[46] Lord Keith's dictum is vouched by numerous authorities. Those which he cited were Knightley v Johns

[1982] 1 WLR 349, where a police officer who attended the scene of a road accident carelessly created an

unnecessary danger to the claimant, and Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242,

where police officers attending a siege at a gunsmith's shop, where a psychopathic intruder had armed

himself and was firing from the building, carelessly caused damage to the premises in the course of an

attempt to end the siege, by firing a CS gas canister into the building in the absence of fire-fighting

equipment. That decision, cited with approval in Hill and in later authorities, is inconsistent with any

supposed rule that the police owe no duty of care in respect of action taken in the course of suppressing

crime. Lord Keith also referred to the decision in Dorset Yacht, where prison officers who brought young

offenders on to an island and then left them unsupervised, when it was reasonably foreseeable that they

would attempt to escape, and in doing so cause damage to property, were held to be in breach of a duty of

care.

[47] Other examples concerning the police include Attorney General of the British Virgin Islands v Hartwell,

where police authorities were held to have been negligent in entrusting a firearm to an officer who was still

on probation and had shown signs of mental instability, and cases such as Frost v Chief Constable of South

Yorkshire Police [1999] 2 AC 455, in which police forces, although not technically employers, have been

treated as owing the same common law duty as employers to take reasonable care for the safety of their

officers. There are also numerous cases concerned with road accidents involving police cars, such as

Marshall v Osmond [1983] QB 1034, where Sir John Donaldson MR observed that the duty owed by a police

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driver to a suspected criminal whom he was pursuing was the same duty as that owed to anyone else,

namely to exercise such care and skill as is reasonable in the circumstances. One might also mention Alcock

v Chief Constable of South Yorkshire Police [1992] 1 AC 310, where the House of Lords accepted, applying

principles developed in cases concerning private individuals and bodies, that a duty of care was owed by the

police, when they were responsible for crowd control at a football match, to persons who suffered psychiatric

injuries as a result of deaths and injuries sustained by members of the crowd, subject to those persons being

sufficiently proximate in time and space to the incident, and to their having a sufficiently close relationship to

the dead and injured.

[48] These cases are not anomalous exceptions to the general absence of a duty of care, and cannot all be

explained as falling within particular categories of the kind listed by Hallett LJ in the present case: cases of

outrageous negligence, cases which did not relate to core functions, and cases where police officers had

assumed responsibility for a claimant. The cases of Rigby v Chief Constable of Northamptonshire and

Marshall v Osmond, for example, are plainly inconsistent with any supposed rule that the police owe no duty

of care when engaged in their core operational activities, or that "outrageous negligence" or an assumption

of responsibility must be established. On the contrary, these cases are examples of the application to the

police of the ordinary common law duty of care to avoid causing reasonably foreseeable injury to persons

and reasonably foreseeable damage to property.

[49] There are also examples concerned with other torts, such as Ashley v Chief Constable of Sussex

Police (Sherwood intervening) [2008] AC 962, where relatives of a suspected drug dealer who had been shot

dead by a police officer during a raid were held to have a cause of action for damages for battery (liability for

negligence having been conceded), Minio-Paluello v Commissioner of Police of the Metropolis [2011] EWHC

3411 (QB), where a protestor who suffered serious injuries when being pulled up from the ground by a police

officer with excessive force was found entitled to damages for assault, and McDonnell v Commissioner of

Police of the Metropolis [2015] EWCA Civ 573, where a claim for damages by a suspected drug dealer for

assault arising from the use of excessive force during his arrest failed only on its facts.

[50] On the other hand, as Lord Toulson noted in Michael (para 37), Lord Keith held that the general duty of

the police to enforce the law did not carry with it a private law duty towards individual members of the public.

In particular, police officers investigating a series of murders did not owe a duty to the murderer's potential

future victims to take reasonable care to apprehend him. That was again in accordance with the general law

of negligence. As explained earlier, the common law does not normally impose liability for omissions, or

more particularly for a failure to prevent harm caused by the conduct of third parties. Public authorities are

not, therefore, generally under a duty of care to provide a benefit to individuals through the performance of

their public duties, in the absence of special circumstances such as an assumption of responsibility. This was

recognised by Lord Toulson in Michael. As he explained:

"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 ... The

question is therefore not whether the police should have special immunity, but whether an

exception should be made to the ordinary application of common law principles." (paras 115-

116)

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[51] As previously explained, however, the reasoning by which Lord Keith arrived at the same conclusion as

Lord Toulson reflects the period during which the case was decided, when Anns continued to be influential.

Following the two-stage approach to liability set out in Anns, Lord Keith considered first the argument that a

duty of care arose in consequence of the foreseeability of harm to potential victims if the murderer was not

apprehended. In that regard, Lord Keith emphasised that the foreseeability of harm was not in itself a

sufficient basis for the imposition of a duty of care, and introduced the concept of proximity as a further

ingredient. He concluded that there was no ingredient or characteristic giving rise to the necessary proximity

between the police and the claimant's daughter (who was one of the murderer's victims), and that the

circumstances of the case were not capable of establishing a duty of care owed towards her by the police.

[52] As Lord Toulson remarked in Michael (para 42), if Lord Keith had stopped at that point, it is unlikely that

the decision would have caused controversy. However, having observed that what he had said was sufficient

for the disposal of the appeal, Lord Keith went on to discuss the application of the second stage of the

approach laid down in Anns: namely, whether there were reasons of public policy why an action should not

lie "in circumstances such as those of the present case" (p 63). He concluded that there were such reasons,

and expressed the view that the Court of Appeal had been "right to take the view that the police were

immune from an action of this kind" (pp 63-64).

[53] It is important to note that this part of Lord Keith's speech was unrelated to a determination of whether

the police were liable for negligence resulting in personal injury, where "anyone else" would be subject to

liability under ordinary principles of the law of tort. He had already confirmed the existence of liability in those

circumstances, as explained at paras 45-46 above. His comments about public policy were concerned with a

different question, namely whether the police generally owe a duty of care to individual members of the

public, in the performance of their investigative function, to protect them from harm caused by criminals: a

question to which, on the principles established prior to Anns and subsequently reinstated in Stovin v Wise,

Gorringe and Michael, as explained in paras 34-37 and 39 above, the answer was plainly no.

[54] In relation to that issue, the decision in Hill has now to be understood in the light of the later authorities.

In Michael, in particular, Lord Toulson (with whom Lord Neuberger, Lord Mance, Lord Hodge and I agreed)

reached the same conclusion as in Hill, but did so primarily by applying the reasoning in Stovin v Wise and

Gorringe. Policy arguments were considered when addressing the argument that the court should create a

new duty of care as an exception to the ordinary application of common law principles (see, in particular,

paras 116-118). Lord Toulson concluded that, in the absence of special circumstances, there is no liability in

"cases of pure omission by the police to perform their duty for the prevention of violence" (para 130).

[55] The case of Hill is not, therefore, authority for the proposition that the police enjoy a general immunity

from suit in respect of anything done by them in the course of investigating or preventing crime. On the

contrary, the liability of the police for negligence or other tortious conduct resulting in personal injury, where

liability would arise under ordinary principles of the law of tort, was expressly confirmed. Lord Keith spoke of

an "immunity", meaning the absence of a duty of care, only in relation to the protection of the public from

harm through the performance by the police of their function of investigating crime.

[56] Arguing against that conclusion, counsel for the respondents relied particularly on five authorities as

supporting the existence of a general immunity. The first was the decision of the House of Lords in Calveley

v Chief Constable of the Merseyside Police [1989] AC 1228, in which police officers who had been

suspended pending the completion of disciplinary proceedings sought damages in respect of an alleged

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failure to conduct the proceedings expeditiously. They claimed to have suffered damage to their reputation,

depression, and a loss of earnings. They alleged that they were owed a duty by the investigating officers to

exercise proper care and expedition in the conduct of the investigation. It was argued that a police officer

investigating a suspected crime owes a duty of care to the suspect and that the same principle applied to the

investigation of a disciplinary offence. The House of Lords rejected the argument. Lord Bridge pointed out

that the claims in negligence foundered on the rocks of elementary principle (p 1238). The losses claimed, so

far as non-financial, were not reasonably foreseeable, and the financial claims ran up against the formidable

obstacles in the way of liability in negligence for purely economic loss. Lord Bridge added that all other

considerations apart, it would 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.

[57] Reliance was placed on the latter dictum, but it is of no assistance to the respondent in the present

case. Lord Bridge's remark has to be understood in its context. The case sought to establish a novel type of

liability relating to the manner in which an investigation was conducted. Lord Bridge's reference to policy

considerations was directed to that claim: he was not addressing the question whether the police may owe a

duty of care to avoid causing reasonably foreseeable physical injury in the course of their operations.

[58] The second authority relied on was the judgment of Steyn LJ in Elguzouli-Daf v Commissioner of Police

of the Metropolis [1995] QB 335. The issue in the appeal was whether the Crown Prosecution Service owed

a duty of care to a person it was prosecuting to act with reasonable diligence in obtaining and acting on

scientific evidence which showed him to be innocent. The Court of Appeal held that no such duty was owed.

Steyn LJ observed that the question raised was a novel one, which in the light of Caparo had to be

considered by analogy with established categories of liability. In that regard, the case of Hill was considered

instructive. Steyn LJ noted that the issue in that case was whether a claim against the police for a negligent

failure to apprehend a violent criminal was sustainable. He summarised the effect of the second part of Lord

Keith's speech as being that "the House of Lords further held, as a second and separate ground of decision,

that as a matter of public policy the police were immune from actions of negligence in respect of their

activities in the investigation and suppression of crime" (p 347). Steyn LJ added that it did not follow that the

police might not be liable where there was some form of assumption of responsibility.

[59] The decision in Elguzouli-Daf has been cited with approval on many occasions, and its correctness was

recently confirmed by this court in SXH v Crown Prosecution Service (United Nations High Commissioner for

Refugees intervening) [2017] UKSC 30; [2017] 1 WLR 1401. But Steyn LJ's summary of the effect of the

second part of Lord Keith's speech in Hill might convey a misleading impression if taken out of context. Steyn

LJ can hardly have meant that the police enjoyed a blanket immunity in respect of anything done in the

course of their activities in the investigation and suppression of crime, given his reliance on Lord Keith's

speech in Hill. As already explained, Lord Keith confirmed the liability of the police for personal injuries in

accordance with the ordinary law of tort, and cited the decision in Rigby v Chief Constable of

Northamptonshire with approval.

[60] Thirdly, reliance was placed on the speech of Lord Steyn in Brooks v Commissioner of Police of the

Metropolis [2005] UKHL 24; [2005] 1 WLR 1495. In that case, the claimant sought damages in respect of a

psychiatric illness which he claimed to have suffered in consequence of his insensitive treatment by officers

investigating an incident in which he had been assaulted and a friend of his had been murdered. The issue

before the House of Lords was whether it was arguable that the police owed him a duty of care (a) to take

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reasonable steps to assess whether he was a victim of crime and, if so, to accord him reasonably

appropriate protection and support, (b) to take reasonable steps to afford him the protection, assistance and

support commonly afforded to a key eye-witness to a serious crime of violence, and (c) to afford reasonable

weight to the account given by him and to act on the account accordingly. The House held that it was not.

The correctness of that conclusion is not in question. On ordinary principles, behaviour which is merely

insensitive is not normally actionable, even if it results in a psychiatric illness.

[61] Lord Steyn recognised that this was a novel type of claim, to which Lord Bridge's observations in

Caparo applied. As in Elguzouli-Daf, he based his approach to the question whether it would be right to

recognise a duty of care of the kind alleged on Lord Keith's speech in Hill. He cited first Lord Keith's

confirmation of the liability of the police for the negligent infliction of personal injuries in accordance with the

general law of tort. He went on to cite the part of Lord Keith's speech concerning whether the police owed a

duty of care to future victims in the performance of their investigative function. In the passage on which

reliance was placed, he stated (para 30):

"A retreat from the principle in Hill's case would have detrimental effects for law enforcement.

Whilst focusing on investigating crime, and the arrest of suspects, police officers would in

practice be required to ensure that in every contact with a potential witness or a potential victim

time and resources were deployed to avoid the risk of causing harm or offence. Such legal

duties would tend to inhibit a robust approach in assessing a person as a possible suspect,

witness or victim. By placing general duties of care on the police to victims and witnesses the

police's ability to perform their public functions in the interests of the community, fearlessly and

with despatch, would be impeded. It would, as was recognised in Hill's case, be bound to lead

to an unduly defensive approach in combating crime."

[62] As Lord Toulson noted in Michael, by endorsing the principle in the Hill case in the terms that he did,

Lord Steyn confirmed that the functions of the police which he identified were public law duties and did not

give rise to private law duties of care in the absence of special circumstances, such as an assumption of

responsibility. Nothing in his reasoning is inconsistent with the existence of a duty of care to avoid causing

physical harm in accordance with ordinary principles of the law of negligence. Lord Steyn plainly had no

intention of undermining the confirmation in Hill that the police were under such a duty of care. The passage

cited was directed towards a different issue.

[63] Fourthly, reliance was placed on Smith v Chief Constable of Sussex Police [2008] UKHL 50; [2009] AC

225, one of two appeals which the House of Lords heard together, the other being Van Colle v Chief

Constable of the Herefordshire Police (Secretary of State for the Home Department intervening). The case of

Smith concerned the question whether, where a person had informed the police that he had received threats

of violence, the police then owed him a duty of care to prevent the threats from being carried out. Applying

the established principles discussed earlier, the answer was no, in the absence of special circumstances

such as an assumption of responsibility, and the House of Lords so held. The House was not however

referred to the line of authority including East Suffolk Rivers Catchment Board v Kent, Stovin v Wise and

Gorringe, which would have provided a basis for deciding the case; nor did it rely on the equivalent body of

authority concerned with omissions by private individuals and bodies, such as Smith v Littlewoods

Organisation Ltd. Those were the bases on which a very similar issue was subsequently decided in Michael.

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[64] In Smith v Chief Constable of Sussex Police, the majority of the House were in agreement that, absent

special circumstances such as an assumption of responsibility, the police owed no duty of care to individuals

affected by the discharge of their public duty to investigate offences and prevent their commission. Lord

Hope, with whose reasoning the other members of the majority agreed, followed the approach adopted in

Brooks in the passage cited in para 61 above, and emphasised the risk that the imposition of a duty of care

of the kind contended for would inhibit a robust approach in assessing a person as a possible suspect or

victim. He acknowledged that "[t]here are, of course, cases in which actions of the police give rise to civil

claims in negligence in accordance with ordinary delictual principles", and cited Rigby as an example (para

79). Lord Phillips of Worth Matravers CJ summarised the core principle to be derived from Hill and Brooks as

being that in the absence of special circumstances, the police owe no common law duty of care to protect

individuals against harm caused by criminals. Lord Brown approached the matter in a similar way,

concluding that, in the absence of an assumption of responsibility towards the eventual victim, the police

generally owe no duty of care to prevent injuries deliberately inflicted by third parties, when they are engaged

in discharging their general duty of combating and investigating crime. None of the speeches is inconsistent

with the existence of a duty of care to avoid causing physical harm in accordance with ordinary principles of

the law of negligence.

[65] Fifthly, reliance was placed on the judgment of the Court of Appeal, delivered by Sir Anthony May P, in

Desmond v Chief Constable of Nottinghamshire Police. The issue in the case was whether the chief

constable owed a duty of care when providing information to the criminal records bureau about the claimant,

so as to enable the bureau to respond to a request for an enhanced criminal record certificate, made in

connection with a job application. The chief constable was under a statutory duty to provide such information

as was in his opinion relevant and ought to be included in the certificate. It was argued that the chief

constable had made an error of judgement in deciding that certain information was relevant and ought to be

included, with the result that the job application had been unsuccessful. The claim was for damages in

respect of financial loss, stress and anxiety.

[66] The court correctly identified the relevant legal principles as being those laid down in East Suffolk River

Catchment Board v Kent, Stovin v Wise and Gorringe, and concluded that no duty of care was owed.

Reliance was however placed by counsel on an earlier part of the judgment, in which the court considered

the cases on which the judge below had based his approach - Hill, Elguzouli-Daf, Brooks, and Smith v Chief

Constable of Sussex Police - and explained why, in its view, they did not provide an answer to the case at

hand. The court summarised the principle to be derived from those decisions as being that "in the absence of

special circumstances, the police and the Crown Prosecution Service do not generally in the interests of the

whole community owe individual members of the public, be they victims, witnesses or those who are

prosecuted, a common law duty of care in undertaking and performing their operational duties of

investigating, detecting, suppressing and prosecuting crime" (para 31). The court went on to state that that

principle might 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" (para 32).

[67] That summary of the law appears to treat the police as being generally under no duty of care when

undertaking and performing their operational duties, other than in special circumstances. It does not reflect

the acceptance of the House of Lords in Hill, reflected also in later cases such as Frost, Alcock and Smith v

Chief Constable of Sussex Police, that the police are generally under a duty of care to avoid causing

personal injury where such a duty would arise according to ordinary principles of the law of negligence. Nor

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can a case such as Rigby be distinguished as an exceptional case at the margins: it was treated both in Hill

and in Smith v Chief Constable of Sussex Police not as an anomaly, but as an instance of a wider principle.

In short, while it is not suggested in the present case that the decision in Desmond was wrong, the particular

passage relied on is not an accurate summary of the law.

[68] On examination, therefore, there is nothing in the ratio of any of the authorities relied on by the

respondent which is inconsistent with the police being under a liability for negligence resulting in personal

injuries where such liability would arise under ordinary principles of the law of tort. That is so notwithstanding

the existence of some dicta which might be read as suggesting the contrary.

[69] In relation to this discussion, it is necessary to respond briefly to some of the points made by Lord

Hughes in his judgment:

i) I do not suggest that the discussion of policy considerations in cases such as Hill, Brooks and Smith should be consigned to history. But it is important to understand that such discussions are not a routine aspect of deciding cases in the law of negligence, and are unnecessary when existing principles provide a clear basis for the decision, as in the present appeal. I would not agree with Lord Hughes's statement that they are the ultimate reason why there is no duty of care towards victims, suspects or witnesses imposed on police officers engaged in the investigation and prevention of crime. The absence of a duty towards victims of crime, for example, does not depend merely on a policy devised by a recent generation of judges in relation to policing: it is based on the application of a general and long-established principle that the common law imposes no liability to protect persons against harm caused by third parties, in the absence of a recognised exception such as a voluntary assumption of responsibility.

ii) The courts are not policy-making bodies in the sense in which that can be said of the Law Commission or government departments. But the exercise of judgement about the potential consequences of a decision has a part to play when the court is asked to decide whether a novel duty of care exists, together with a consideration of existing principles and of the need for the law to develop coherently and incrementally: see para 24 above.

iii) Hill, Brooks and Smith were all cases in which novel types of claim were made. Hill was also decided at a time when, following Anns, policy arguments were particularly prominent in judicial reasoning, and when the principle in East Suffolk Rivers Catchment Board, which could otherwise have provided a solution, had been rejected. Brooks and Smith were cases in which existing principles pointed strongly towards the rejection of a duty of care, but since those principles were challenged or argued to be subject to exceptions which would accommodate the instant case, it is entirely understandable that the House of Lords referred to policy considerations as supporting their conclusion.

iv) The distinction between careless acts causing personal injury, for which the law generally imposes liability, and careless omissions to prevent acts (by other agencies) causing personal injury, for which the common law generally imposes no liability, is not a mere alternative to policy-based reasoning, but is inherent in the nature of the tort of negligence. For the same reason, although the distinction, like any other distinction, can be difficult to draw in borderline cases, it is of fundamental importance. The central point is that the law of negligence generally imposes duties not to cause harm to other people or their property: it does not generally impose duties to provide them with benefits (including the prevention of harm caused by other agencies). Duties to provide benefits are, in general, voluntarily undertaken rather than being imposed by the common law, and are typically within the domain of contract, promises and trusts rather than tort. It follows from that basic characteristic of the law of negligence that

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liability is generally imposed for causing harm rather than for failing to prevent harm caused by other people or by natural causes. It is also consistent with that characteristic that the exceptions to the general non-imposition of liability for omissions include situations where there has been a voluntary assumption of responsibility to prevent harm (situations which have sometimes been described as being close or akin to contract), situations where a person has assumed a status which carries with it a responsibility to prevent harm, such as being a parent or standing in loco parentis, and situations where the omission arises in the context of the defendant's having acted so as to create or increase a risk of harm.

v) The argument that most cases can be equally analysed in terms of either an act or an omission, sometimes illustrated by asking whether a road accident is caused by the negligent driver's act of driving or by his omission to apply the brakes or to keep a good lookout, does not reflect the true nature and purpose of the distinction, as explained above. The argument was answered by Lord Hoffmann in Stovin v Wise (p 945):

"One must have regard to the purpose of the distinction as it is used in the law of negligence,

which is to distinguish between regulating the way in which an activity may be conducted and

imposing a duty to act upon a person who is not carrying on any relevant activity. To hold the

defendant liable for an act, rather than an omission, it is therefore necessary to be able to say,

according to common sense principles of causation, that the damage was caused by

something which the defendant did. If I am driving at 50 miles an hour and fail to apply the

brakes, the motorist with whom I collide can plausibly say that the damage was caused by my

driving into him at 50 miles an hour."

vi) In relation to the cases discussed in Lord Hughes's para 114, it follows from the foregoing explanation of the distinction between acts and omissions that Hill and Smith were concerned with omissions, as in each case the claimant sought to have the police held liable for death or personal injuries which had been caused not by the police but by a third party. Calveley, Elguzouli-Daf and Brooks, on the other hand, were concerned with positive acts, but were cases in which a duty of care was held not to exist for other reasons, as explained earlier. In Calveley, the plaintiffs sought to have the police held liable for economic loss and other harm which they had caused by subjecting the plaintiffs to disciplinary proceedings which were unduly prolonged. In Elguzouli-Daf, the plaintiffs sought to have the Crown Prosecution Service held liable for a loss of liberty which they had caused by subjecting the plaintiffs to criminal proceedings which were unduly prolonged. In Brooks, the claimant sought to have the police held liable for a mental illness which they had caused by treating him inconsiderately.

vii) So far as the cases discussed in Lord Hughes's paras 115-117 are concerned, Goldman v Hargrave [1967] 1 AC 645 and Thomas Graham Ltd v Church of Scotland 1982 SLT (Sh Ct) 26 concerned the responsibilities of an occupier of land in respect of dangers to his neighbours' property which arise on his land: responsibilities which can be understood as arising from his exclusive right of possession. Michael was clearly concerned with an omission, as Lord Toulson's judgment made clear: the police were sought to be made liable for the death of a woman at the hands of a third party. Barrett v Enfield London Borough Council, as explained in Gorringe at para 39, was a case where there was an assumption of parental responsibilities. Phelps v Hillingdon London Borough Council, as explained in Gorringe at para 40, concerned a relationship which involved an implied undertaking to exercise reasonable care, akin to the relationship between doctor and patient.

[70] Returning, then, to the second of the issues identified in para 20 above, it follows that there is no

general rule that the police are not under any duty of care when discharging their function of preventing and

investigating crime. They generally owe a duty of care when such a duty arises under ordinary principles of

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the law of negligence, unless statute or the common law provides otherwise. Applying those principles, they

may be under a duty of care to protect an individual from a danger of injury which they have themselves

created, including a danger of injury resulting from human agency, as in Dorset Yacht and Attorney General

of the British Virgin Islands v Hartwell. Applying the same principles, however, the police are not normally

under a duty of care to protect individuals from a danger of injury which they have not themselves created,

including injury caused by the conduct of third parties, in the absence of special circumstances such as an

assumption of responsibility.

[71] In the light of that conclusion, the remaining issues in the case are relatively straightforward and can be

dealt with comparatively briefly.

(3) Is this case concerned with an omission or with a positive act?

[72] The role of the police in the accident in which Mrs Robinson was injured is not comparable to that of the

defendant in the examples commonly given of pure omissions: for example, someone who watches and

does nothing as a blind man approaches the edge of a cliff, or a child drowns in a shallow pool. Nor, to cite

more realistic examples, is it comparable to that of the police authority in Hill, which failed to arrest a

murderer before a potential future victim was killed, or the police authority in Michael, which failed to respond

to an emergency call in time to save the caller from an attack. In such cases the defendant played no active

part in the critical events. Nor is this a case in which the chief constable is sought to be made liable for the

conduct of a third party. Lord Reid's observation in Dorset Yacht (at p 1027) is apposite: "the ground of

liability is not responsibility for the acts of the escaping trainees; it is liability for damage caused by the

carelessness of these officers in the knowledge that their carelessness would probably result in the trainees

causing damage of this kind".

[73] In the present case, the ground of action is liability for damage caused by carelessness on the part of

the police officers in circumstances in which it was reasonably foreseeable that their carelessness would

result in Mrs Robinson's being injured. Her complaint is not that the police officers failed to protect her

against the risk of being injured, but that their actions resulted in her being injured. In short, this case is

concerned with a positive act, not an omission.

(4) Did the police officers owe a duty of care to Mrs Robinson?

[74] It was not only reasonably foreseeable, but actually foreseen by the officers, that Williams was likely to

resist arrest by attempting to escape. That is why Willan summoned assistance in the first place, before

attempting to arrest Williams, and why it was decided that DS Roebuck and DC Green should be positioned

on the opposite side of Williams from Willan and Dhurmea, so as to block his escape route. The place where

the officers decided to arrest Williams was a moderately busy shopping street in a town centre. Pedestrians

were passing in close vicinity to Williams. In those circumstances, it was reasonably foreseeable that if the

arrest was attempted at a time when pedestrians - especially physically vulnerable pedestrians, such as a

frail and elderly woman - were close to Williams, they might be knocked into and injured in the course of his

attempting to escape. That reasonably foreseeable risk of injury was sufficient to impose on the officers a

duty of care towards the pedestrians in the immediate vicinity when the arrest was attempted, including Mrs

Robinson.

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(5) Was the Court of Appeal entitled to overturn the Recorder's finding that the officers had failed in their duty

of care?

[75] The Court of Appeal was correct to emphasise the importance of not imposing unrealistically

demanding standards of care on police officers acting in the course of their operational duties. That is most

obviously the case where critical decisions have to be made in stressful circumstances with little or no time

for considered thought. This point has long been recognised. For example, in Marshall v Osmond, concerned

with a police driver engaged in the pursuit of a suspect, Sir John Donaldson MR stated, as noted at para 47

above, that the officer's duty was to exercise "such care and skill as is reasonable in all the circumstances".

He went on to state that those "were no doubt stressful circumstances", and that although there was no

doubt that the officer made an error of judgment, he was far from satisfied that the officer had been negligent

(p 1038). The same point was made, in a context closer to that of the present case, by May LJ in Costello v

Chief Constable of Northumbria [1999] ICR 752, 767, where he remarked that "liability should not turn on ...

shades of personal judgment and courage in the heat of the potentially dangerous moment".

[76] It is also necessary to remember that a duty to take reasonable care can in some circumstances be

consistent with exposing individuals to a significant degree of risk. That is most obviously the case in relation

to the police themselves. There are many circumstances in which police officers are exposed to a risk of

injury, but in which such exposure is consistent with the taking of reasonable care for their safety. Equally,

there may be circumstances which justify the taking of risks to the safety of members of the public which

would not otherwise be justified. A duty of care is always a duty to take such care as is reasonable in the

circumstances.

[77] In the present case, the Recorder's finding of negligence was based on a number of matters. It is

unnecessary to consider them all, as at least one of them clearly did not involve imposing on the officers an

unrealistically high standard of care. The Recorder accepted DS Willan's evidence that the officers were

aware that there was a significant risk that Williams would try to run away, and that he was aware of the

potential for harm to members of the public in that event. Willan also gave evidence that it was necessary to

consider the risk to those in the vicinity, and that if it had appeared to him that someone was in harm's way,

he would have walked past Williams without effecting the arrest. The Recorder noted that that was in

accordance with the relevant guidance provided to police officers. Although Mrs Robinson had just walked

past Williams and was within a yard of him, in full view of the officers, Willan simply failed to notice her.

[78] The Recorder was entitled to find negligence on that basis alone, regardless of the soundness of his

other criticisms of how the arrest was carried out. Willan accepted that he ought to have been taking care for

the safety of members of the public in the immediate vicinity. If he had been taking such care, he would have

noticed Mrs Robinson: she was immediately in front of him, next to Williams. This was not a situation in

which Williams had to be arrested at that precise moment, regardless of the risk that a passer-by might be

injured: on Willan's evidence, if he had noticed that someone was in harm's way, he would not have made

the arrest at that moment.

(6) Were Mrs Robinson's injuries caused by the officers' breach of their duty of care?

[79] The chain of events which resulted in Mrs Robinson's being injured was initiated by DS Willan's and PC

Dhurmea's attempt to arrest Williams. It was their taking hold of him which caused him to attempt to struggle

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free, and it was in the course of the resultant tussle between the three men that Mrs Robinson was knocked

over and injured.

[80] In these circumstances, it is impossible to argue that the chain of causation linking the attempt to arrest

Williams to Mrs Robinson's being injured was interrupted by Williams' voluntary decision to resist arrest,

which resulted in his knocking into her. The voluntary act of a third party, particularly when it is of a criminal

character, will often constitute a novus actus interveniens, but not when that act is the very one which the

defendant was under a duty to guard against: see, for example, Dorset Yacht and Attorney General of the

British Virgin Islands v Hartwell. It would be absurd to say that the officers owed Mrs Robinson a duty of care

not to arrest Williams when she was in the immediate vicinity, because of the danger that she might be

injured if he attempted to escape, and then to hold that his attempted escape broke the chain of causation

between their negligently arresting him when she was next to him, and her being injured when he attempted

to escape. In short, Mrs Robinson was injured as a result of being exposed to the very danger from which the

officers had a duty of care to protect her.

Conclusion

[81] For these reasons, I would allow the appeal, hold that the Chief Constable is liable in damages to Mrs

Robinson, and remit the case for the assessment of damages.

LORD MANCE:

[82] I have read with benefit the judgments prepared by Lord Reed and Lord Hughes in this case. I agree

that the case is one of positive conduct by the police in instigating an arrest on public pavement, which

caused injury to Mrs Robinson, an otherwise uninvolved passer-by. Having watched the excellent CCTV

recording and compared it with the judge's findings, I confess to the same doubt as Lord Hughes about the

judge's finding of negligence. The pavement was quite busy, the relevant suspects were for the first time

stationary, and Mrs Robinson might appear to have passed by and to be at a little distance, by the time the

police seized what they obviously thought was the opportune moment. However, like Lord Hughes and

bearing in mind the evidence accepted by the judge as set out by Lord Reed in his para 77, I do not on

balance consider that this is a case where an appellate court should interfere with the judge's conclusions,

after hearing all the evidence.

[83] As Lord Reed demonstrates, it is unnecessary in every claim of negligence to resort to the three-stage

analysis (foreseeability, proximity and fairness, justice and reasonableness) identified in Caparo Industries

Ltd v Dickman [1990] 2 AC 605. There are well-established categories, including (generally) liability for

causing physical injury by positive act, where the latter two criteria are at least assumed. The concomitant is

that there is, absent an assumption of responsibility, no liability for negligently omitting to prevent damage

occurring to a potential victim. This also provides a rationale for the general rule that the police and CPS

have no liability for failure, by efficient investigation or pursuit of an actual or potential offence, to prevent a

subsequent victim from suffering physical injury at the hands of a third party for whose acts the State is not

responsible: Michael v Chief Constable of South Wales Police [2015] UKSC 2; [2015] AC 1732, paras 114-

130 and 137. Economic loss also falls outside the established category of liability for physical injury, but an

assumption of responsibility for economic loss will, as discussed in Hedley Byrne & Co Ltd v Heller &

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Partners Ltd [1964] AC 465, likewise satisfy the latter two Caparo criteria. Outside any established category,

the law will proceed incrementally, and all three stages of the Caparo analysis will be material.

[84] It would be unrealistic to suggest that, when recognising and developing an established category, the

courts are not influenced by policy considerations. No-one now suggests that the common law has not

changed since the Saxon era, merely to be revealed from time to time by an increasingly perceptive

judiciary. As Lord Reid said famously in The Judge as Law maker: "There was a time when it was thought

almost indecent to suggest that judges make law - they only declare it ... But we do not believe in fairy tales

any more": Journal of the Chartered Institute of Arbitrators August 1997, vol 63(3) p 180, see also Lord Goff's

comments on the declaratory theory of the common law in Kleinwort Benson Ltd v Lincoln County Council

[1999] 2 AC 349, 377-379. The courts are not a Law Commission, but, in recognising the existence of any

generalised duty in particular circumstances they are making policy choices, in which considerations such as

proximity and fairness, justice and reasonableness must inhere. Landmark examples are Donoghue v

Stevenson [1932] UKHL 100; [1932] AC 562, in relation to physical injury, and Hedley Byrne & Co Ltd v

Heller & Partners Ltd [1964] AC 465, in circumstances where there has been an assumption of responsibility

to give accurate information upon which it is foreseeable that the recipient will rely to its economic benefit or

detriment.

[85] The key to the application of the above principles is to ascertain whether or not a particular situation

falls within an established category. Lord Reed treats physical loss resulting foreseeably from positive

conduct as constituting axiomatically such a category, whatever the precise circumstances. I accept that

principle as generally correct: see eg Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310, 396F-G,

per Lord Keith. But I am not persuaded that it is always a safe guide at the margins. I note that Lord Oliver

went no further in Caparo than to say that, "in the context of loss caused by physical damage", "the existence

of the nexus between the careless defendant and the injured plaintiff can rarely give rise to any difficulty": p

632F. He went on to identify Hill, "so far as concerns the alternative ground of that decision", as a case

"where, in any ordinary meaning of the words, a relationship of proximity (in the literal sense of 'closeness')

exists but where the law, whilst recognising the fact of the relationship, nevertheless denies a remedy to the

injured party on the ground of public policy": p 633D-E.

[86] Lord Reed says that Smith v Ministry of Defence [2013] UKSC 41; [2014] AC 52 was a case where it

was appropriate to apply the three-stage Caparo approach because it raised "a novel legal issue, relating to

the provision of protective equipment to soldiers on active duty, and the scope of combat immunity: it did not

concern an established category of liability". But, why not? Combat immunity, where it applies, is, I

suggested at para 114, itself "not so much an entirely separate principle as the result of a general conclusion

that it is not fair, just or reasonable to regard the Crown or its officers, soldiers or agents as under a duty of

care to avoid injury or death in their acts or omissions in the conduct of an active military operation or act of

war". And, however that may be, a reading of the judgments shows that no distinctions were there drawn

between acts and omissions, either generally or in the specific context of the discussion which is to be found

on prior authority, including Hill v Chief Constable of West Yorkshire [1989] AC 53, Elguzouli-Daf v

Commissioner of Police for the Metropolis [1995] QB 335, Stovin v Wise [1996] AC 923, Brooks v

Commissioner of Police for the Metropolis [2005] 1 WLR 1495 and Van Colle v Chief Constable of the

Hertfordshire Police [2009] AC 225: see Smith's case at eg paras 82-83, 95-96 and 97, per Lord Hope and

paras 108-109, 114, 117 and 136, per Lord Mance (dissenting).

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[87] Lord Carnwath's (dissenting) judgment at paras 157-170 is also of interest, for noting that the issue was

a novel one, and that the closest analogy consisted in the above line of cases about police responsibility,

again without drawing any distinction between acts and omissions. The case was a novel one, not because it

fell outside the general category of negligent acts or omissions allegedly causing physical loss, but because

it was not (yet) established that the established category embraced the particular types of acts or omissions

alleged and the circumstances in which soldiers might suffer from them. Indeed, it was accepted on all sides

that combat immunity meant that the established category was not on any view completely unqualified, and

the question arose in that respect what scope the courts should, as a matter of policy, attach to the principle

of combat immunity.

[88] A similar difficulty arises in fitting other authorities which Lord Reed accepts as correctly decided into

any absolutely fixed legal mould. The cases of Hill and Smith v Chief Constable of Sussex Police [2008]

UKHL 50; [2009] AC 225 can, I agree, be rationalised as cases of omission, but that was not how they were

reasoned. The case of Calveley v Chief Constable of the Merseyside Police [1989] AC 1228 involved a claim

by police officers for pursuing disciplinary proceedings with insufficient expedition, thereby, it was alleged,

causing them physical loss, which was held to be unforeseeable, and economic loss of a kind, which is, in

the absence of any assumption of responsibility, generally irrecoverable. But again Lord Bridge buttressed

his conclusion with general statements about the need to shield the police from the pursuit of claims in

relation to their investigative activity, without distinction between acts and omissions.

[89] In Elguzouli-Daf there were two similarly based claims, but the consequences of the CPS's failure to

pursue their investigation with sufficient expedition were alleged to be that the claimants remained in custody

for some 22 and 85 days respectively. In the absence of any specific assumption of responsibility, the Court

of Appeal held that policy factors argued against the recognition of a duty of care owed by the CPS to those

it prosecutes: p 349B-C, per Steyn LJ, who went on:

"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 CPS."

As Morritt LJ put it at p 352G-H, policy considerations similar to those which weighed with Lord Keith in Hill's

case excluded any general duty to use reasonable care in the institution and conduct of criminal

proceedings. The reasoning contains no hint of a categorical distinction between acts and omissions.

[90] A year later, the House had before it in Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] 1 AC

211 a claim by cargo owners against a classification society by whose alleged negligence the carrying vessel

was allowed to continue on her voyage after temporary repairs to a crack in her hull, which then caused the

loss of both vessel and cargo. Cargo owners' primary submission was that, this being a case of physical

damage to property in which the plaintiff had a proprietary or possessory interest, the only requirement was

proof of reasonable foreseeability. The House rejected this categorically, in the following passage from Lord

Steyn's speech, p 235D-H):

"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

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Caparo Industries Plc v Dickman [1990] 2 AC 605, 632C-633D. 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 Dorset Yacht Co Ltd v Home Office [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. Saville LJ explained at 1077[D-E]:

'... whatever the nature of the harm sustained by the plaintiff, it is necessary to consider the

matter not only by inquiring about foreseeability but also by considering the nature of the

relationship between the parties; and to be satisfied that in all the circumstances it is fair, just

and reasonable to impose a duty of care. Of course, ... these three matters overlap with each

other and are really facets of the same thing. For example, the relationship between the parties

may be such that it is obvious that a lack of care will create a risk of harm and that as a matter

of common sense and justice a duty should be imposed. ... Again in most cases of the direct

infliction of physical loss or injury through carelessness, it is self-evident that a civilised system

of law should hold that a duty of care has been broken, whereas the infliction of financial harm

may well pose a more difficult problem. Thus the three so-called requirements for a duty of care

are not to be treated as wholly separate and distinct requirements but rather as convenient and

helpful approaches to the pragmatic question whether a duty should be imposed in any given

case. In the end whether the law does impose a duty in any particular circumstances depends

upon those circumstances, ...'

That seems to me a correct summary of the law as it now stands. It follows that I would reject

the first argument of counsel for the cargo owners." (italics added for emphasis)

While both the House and Saville LJ (as he was) were happy to accept that "in most cases" of the direct

infliction of physical loss or injury through carelessness, liability was self-evident, they were cautious to warn

against absolute rules in that respect.

[91 Elguzouli-Daf was, as Lord Reed notes, para 59, followed and applied in SXH v Crown Prosecution

Service [2017] UKSC 30; [2017] 1 WLR 1401, where the complaint was that the CPS had acted

unreasonably in prosecuting an asylum seeker, leading to her detention for some months. Lord Toulson

giving the majority judgment said:

"38. The duty of the CPS is to the public, not to the victim or to the suspect, who have separate

interests. To recognise a duty of care towards victims or suspects or both, would put the CPS

in positions of potential conflict, and would also open the door to collateral interlocutory civil

proceedings and trials, which would not be conducive to the best operation of the criminal

justice system. Similar considerations are relevant when considering the applicability of art 8 in

the context of a decision to prosecute. A decision to prosecute does not of itself involve a lack

of respect for the autonomy of the defendant but places the question of determining his or her

guilt before the court, which will itself be responsible for deciding ancillary questions of bail or

remand in custody and the like."

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The claim here was clearly for a positive act, causing excessive detention.

[92] Finally, Lord Reed dismisses Brooks's case on the basis that it concerned police behaviour which was

"merely insensitive" and so "not normally actionable, even if it results in a psychiatric illness": para 60. But

the starting point for the House's consideration of the case was that Mr Brooks had, as a key witness to the

fatal attack on Stephen Lawrence on 22 April 1993, suffered "from a very serious post-traumatic stress

disorder" until the spring of 1998, and that this had been severely exacerbated or aggravated as a result of

the police's failure to treat him lawfully: para 10. Lord Steyn said in this connection that:

"In particular the matter must be considered on the basis that Mr Brooks has suffered personal

injury (in the form of an exacerbation of or aggravation of the post-traumatic stress that was

induced by the racist attack itself) in consequence of the negligence of the officers and that

injury of this type was reasonably foreseeable." (para 16)

That being the basis on which the matter fell to be considered, the appellant advanced the argument that

Hill's case could be distinguished. The House disposed of that argument tersely as follows, para 32:

"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 ..., Elguzouli-Daf ..., and Kumar ... were cases of alleged

positive and direct negligence by the police. The distinction is unmeritorious."

[93] According to the House's decision in Alcock's case, what is necessary in order to recover damages for

negligently caused psychiatric injury is not only foreseeability, but also proximity. Both requirements appear

clearly to have been present in Brooks' case. In the event, Lord Steyn also treated the third stage of the

Caparo test (fairness, justice and reasonableness) as applicable. But it is clear that the House decided the

case by reference to a general principle derived from the cases of Hill, Calveley and Elguzouli-Daf, and not

on the basis of any general distinction between either physical and psychiatric injury or acts or omission.

Rather, it decided the case on the basis that, outrageous negligence aside, the police owe no "duty of care

not to cause by positive act or omissions harm to victims of serious crime, or witnesses to serious crime, with

whom they have contact"; and it rejected categorically any distinction between indirect causation of the

murder of an innocent victim, due to failure properly to investigate past offences against other victims (Hill's

case) and harm "directly caused ... to Mr Brooks" (Brooks's case itself): paras 18 and 32.

[94] What I think emerges from this examination of past authority is that it is not possible to state absolutely

that policy considerations may not shape police or CPS liability in a context where the conduct of the police

may perfectly well be analysed as positive, rather than simply as involving some form of omission. It is at

least clear that extended detention and psychiatric injury, due to the police's or CPS's positive acts or

omissions, will be treated as outside any otherwise generally established category of liability for negligence.

[95] As to the present appeal, I also think that there was open to the law a genuine policy choice whether or

not to hold the police responsible on a generalised basis for direct physical intervention on the ground,

causing an innocent passer-by physical injury, in the performance of their duties to investigate, prevent and

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arrest for suspected offending by some third person(s). In my opinion, that policy choice should now be

made unequivocally in the sense indicated by Lord Reed. In Hill's case Lord Keith stated (p 59B-C), that:

"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."

Lord Keith then cited as "instances where liability for negligence has been established" two authorities:

Knightley v Johns [1982] 1 WLR 349 and Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242.

[96] Neither comes particularly close to the present case, and indeed, in reasoning to some extent echoed

in the present Court of Appeal decision, the Court of Appeal (Leveson and Toulson LJJ) in Desmond v Chief

Constable of Nottinghamshire Police [2011] EWCA Civ 3; [2011] PTSR 1369, identified the "modified core

principle in Hill" as meaning that: Absent special circumstances, "the police ... 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": para 31. But it recognised that the modified core principle in

Hill "may not apply in exceptional circumstances at the margins". It gave as examples of where it would not

apply cases of negligent driving by the police and of assumption of responsibility. It also identified as further

examples the two cases mentioned by Lord Keith.

[97] As to those two cases, the former concerned police (mis)management of the aftermath of a relatively

mundane traffic accident, by giving instructions to an officer to ride against the traffic flow in a tunnel, as a

result of which he suffered personal injury. The latter concerned police failure to re-equip themselves with

fire-fighting equipment, before taking the drastic step, with a view to forcing the intruder's arrest, of firing an

incendiary canister into a building in which an intruder had broken with a gun. The present case concerns in

contrast a quite delicate operational decision involving coordination between four officers, with a view to the

arrest of suspected drug dealers, in a public place. It can be suggested that this raises special

considerations, negativing any duty of care. But in my view we should not accept that suggestion. Rather we

should now recognise the direct physical interface between the police and the public, in the course of an

arrest placing an innocent passer-by or bystander at risk, as falling within a now established area of general

police liability for positive negligent conduct which foreseeably and directly inflicts physical injury on the

public. On that basis, I would also allow this appeal and restore the judge's judgment.

LORD HUGHES:

THE QUESTION OF LAW

[98] The general question of importance in this appeal is when the police do or do not owe a legal duty of

care to individuals in the course of performing their public functions of investigating and preventing crime.

[99] It is important that the question is posed in those terms. It may have become a convenient shorthand to

express the decisions of the House of Lords and this court in Hill v Chief Constable of West Yorkshire,

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Brooks v Commissioner of Police of the Metropolis, Smith v Chief Constable of Sussex Police and Michael v

Chief Constable of South Wales in terms of a rule of police immunity. That may not be surprising since Lord

Keith did at one point in Hill refer to the police as immune from an action of the kind there brought. Whether

convenient or not, that shorthand is misleading, as Lord Toulson explained in Michael at para 44. Whatever

the answer to the question posed, the police do not enjoy some immunity from liability which otherwise would

arise. Like others, however, they do not owe a duty of care to avoid harm or damage in every situation where

such harm or damage can be foreseen. The general rule of law of tort is that the foreseeability of harm is a

necessary but not a sufficient condition for liability. So in all the many situations and relationships which may

result in damage, the question becomes: when is the defendant under a legal duty of care to the claimant to

take reasonable steps to avoid it.

[100] For the reasons very clearly set out by Lord Reed at paras 21-30 it is neither necessary nor

appropriate to treat Caparo Industries v Dickman [1990] 2 AC 605 as requiring the application of its familiar

three-stage examination afresh to every action brought. Where the law is clear that a particular relationship,

or recurrent factual situation, gives rise to a duty of care, there is no occasion to resort to Caparo, at least

unless the court is being invited to depart from previous authority.

[101] The four cases of Hill, Brooks, Smith and Michael make it clear that they do not touch on the liability of

police officers if by positive negligent act they cause physical harm to individuals or damage to property. That

is apparent from:

i) the approval in those cases of the decisions in Rigby v Chief Constable of Northamptonshire (negligent use of a CS gas canister in an attempt to force an armed psychopath from a shop in which he had gone to ground) and Knightley v Johns (negligent organisation of traffic in an emergency situation); and

ii) the explicit statement by Lord Keith in Hill at 59B, approved in subsequent cases, that:

"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."

(although see below for consideration of omissions).

[102] There are other examples of recognition of the duty of care which police officers owe not by positive

negligent act to cause physical harm. They include Marshall v Osmond (a car chase) and Ashley v Chief

Constable of Sussex Police (where negligent shooting of a suspected criminal was conceded).

[103] The principal cases, however, also contain explicit statements of the vital policy considerations which

impose limits on the duties of care which the police owe to individuals when engaged in their public function

of investigating and preventing crime. The analysis begins with Lord Keith in Hill. With the express

agreement of three other members of the court, and a concurring speech by the fifth, he said at 63A:

"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 ...

Page 101

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 a 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. 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."

Lord Templeman added this at 65:

"Moreover, if this action lies, every citizen will be able to require the court to investigate the

performance of every policeman. If the policeman concentrates on one crime, he may be

accused of neglecting others. If the policeman does not arrest on suspicion a suspect with

previous convictions, the police force may be held liable for subsequent crimes. The threat of

litigation against a police force would not make a policeman more efficient. The necessity for

defending proceedings, successfully or unsuccessfully, would distract the policeman from his

duties.

This action is in my opinion misconceived and will do more harm than good."

[104] In Brooks at para 28 Lord Steyn qualified that part of what Lord Keith had said about the best

endeavours of police officers, saying that a more sceptical approach to the carrying out of all public functions

was necessary. His qualification was shared by Lord Bingham at paras 3 and 4 and by Lord Nicholls at para

6. But notwithstanding that reservation, Lord Steyn, with whom Lord Rodger and Lord Brown fully agreed,

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otherwise fully endorsed the reasoning of Lord Keith. At para 30 he held that the "core principle" of Hill had

remained unchallenged for many years. He went on:

"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 ...:

A retreat from the principle in Hill's case would have detrimental effects for law enforcement.

Whilst focusing on investigating crime, and the arrest of suspects, police officers would in

practice be required to ensure that in every contact with a potential witness or a potential victim

time and resources were deployed to avoid the risk of causing harm or offence. Such legal

duties would tend to inhibit a robust approach in assessing a person as a possible suspect,

witness or victim. By placing general duties of care on the police to victims and witnesses the

police's ability to perform their public functions in the interests of the community, fearlessly and

with despatch, would be impeded. It would, as was recognised in Hill's case, be bound to lead

to an unduly defensive approach in combating crime."

As Lord Steyn pointed out (para 19), there can be no doubt that Lord Keith's analysis represented the

alternative ground of decision for, and part of the ratio decidendi of, Hill.

[105] In the same case, Lord Bingham, at para 4, said of the suggested duties of care to witnesses which

were advanced by the claimant,

"But these are not duties which could be imposed on police officers without potentially

undermining the officers' performance of their functions, effective performance of which serves

an important public interest. That is, in my opinion, a conclusive argument in the

Commissioner's favour."

And at para 5 Lord Nicholls held that

"These duties would cut across the freedom of action the police ought to have when

investigating serious crime."

[106] In Smith Lord Bingham dissented on the extent of the duty of care owed to those who complained to

the police about risks from another identified person and advanced what he termed a "liability principle"

recognising a duty of care in narrow circumstances. But notwithstanding that opinion, he reviewed the policy

considerations voiced by Lord Keith in Hill and by the House in Brooks and, except for the reservation

entered in Brooks which is explained above, he did not question them: see paras 48-52. The majority of the

House expressly endorsed the policy considerations subject to the same reservation.

Page 103

[107] At para 74 Lord Hope addressed Lord Bingham's opinion that the limited liability which he would have

imposed was not inconsistent with the policy factors, and that the observations in Hill and Brooks were to be

read in the context of the duties there contended for. He held that they were not so limited:

"In my opinion however it is clear from Lord Steyn's opinion, read as a whole, that he was

laying down a principle of public policy that was to be applied generally. In para 22 he referred

to his own judgment in Elguzouli-Daf v Comr of Police of the Metropolis [1995] 1 QB 335. That

was, as he said, a different case altogether, as it raised the question whether the Crown

Prosecution Service ('CPS') owed a duty of care to those whom it was prosecuting. But he

relied on the case by analogy. In holding in Elguzouli-Daf that policy factors argued against the

recognition of a duty of care owed by the CPS to those whom it prosecutes, he said this at p

349:

'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 CPS. In my view, such a duty of care would tend to have an

inhibiting effect on the discharge by the CPS of its central function of prosecuting crime. It

would in some cases lead to a defensive approach by prosecutors to their multifarious duties. It

would introduce a risk that prosecutors would act so as to protect themselves from claims of

negligence.'

75. The phrase 'the interests of the whole community' was echoed in the last sentence of the

passage which I have quoted from Lord Steyn's opinion in Brooks. There is an echo too in

Brooks of the warning against yielding to arguments based on civil liberties: see the first

sentence of that quotation where he warns against a retreat from the core principle. The point

that he was making in Brooks, in support of the core principle in Hill, was that the principle had

been enunciated in the interests of the whole community. Replacing it with a legal principle

which focuses on the facts of each case would amount, in Lord Steyn's words, to a retreat from

the core principle. We must be careful not to allow ourselves to be persuaded by the

shortcomings of the police in individual cases to undermine that principle. That was the very

thing that he was warning against, because of the risks that this would give rise to. As Ward LJ

said in Swinney v Chief Constable of Northumbria Police Force [1997] QB 464, 487, the greater

public good outweighs any individual hardship. A principle of public policy that applies generally

may be seen to operate harshly in some cases, when they are judged by ordinary delictual

principles. Those are indeed the cases where, as Lord Steyn put it, the interests of the wider

community must prevail over those of the individual.

76. The risk that the application of ordinary delictual principles would tend to inhibit a robust

approach in assessing a person as a possible suspect or victim, which Lord Steyn mentioned in

the last sentence of the passage that I have quoted from his opinion in Brooks, is directly

relevant to cases of the kind of which Smith's case is an example ...

Police work elsewhere may be impeded if the police were required to treat every report from a

member of the public that he or she is being threatened with violence as giving rise to a duty of

care to take reasonable steps to prevent the alleged threat from being executed. Some cases

will require more immediate action than others. The judgment as to whether any given case is

of that character must be left to the police."

Page 104

[108] At para 89 Lord Phillips observed that public policy has been at the heart of consideration whether a

duty of care is owed by police officers to individuals. After reviewing the policy factors he concluded at para

97:

"I do not find it possible to approach Hill and Brooks as cases that turned on their own facts.

The fact that Lord Steyn applied the decision in Hill to the facts of Brooks, which were so very

different, underlines the fact that Lord Steyn was indeed applying a 'core principle' that had

been 'unchallenged ... for many years'. That principle is, so it seems to me, that in the absence

of special circumstances the police owe no common law duty of care to protect individuals

against harm caused by criminals. The two relevant justifications advanced for the principle are

(i) that a private law duty of care in relation to individuals would be calculated to distort, by

encouraging defensive action, the manner in which the police would otherwise deploy their

limited resources; (ii) resources would be diverted from the performance of the public duties of

the police in order to deal with claims advanced for alleged breaches of private law duties owed

to individuals."

[109] At para 108 Lord Carswell said this:

"The factor of paramount importance is to give the police sufficient freedom to exercise their

judgment in pursuit of their objects in work in the public interest, without being trammelled by

the need to devote excessive time and attention to complaints or being constantly under the

shadow of threatened litigation. Over-reaction to complaints, resulting from defensive policing,

is to be avoided just as much as failure to react with sufficient speed and effectiveness. That

said, one must also express the hope that police officers will make good use of this freedom,

with wisdom and discretion in judging the risks, investigating complaints and taking appropriate

action to minimise or remove the risk of threats being carried out."

[110] Lastly, Lord Brown added, at paras 131-133

"131. Fourthly, some at least of the public policy considerations which weighed with the House

in Hill and Brooks to my mind weigh also in the present factual context. I would emphasise two

in particular.

132. First, concern that the imposition of the liability principle upon the police would induce in

them a detrimentally defensive frame of mind. So far from doubting whether this would in fact

be so, it seems to me inevitable. If liability could arise in this context (but not, of course, with

regard to the police's many other tasks in investigating and combating crime) the police would

be likely to treat these particular reported threats with especial caution at the expense of the

many other threats to life, limb and property of which they come to learn through their own and

others' endeavours. They would be likely to devote more time and resources to their

investigation and to take more active steps to combat them. They would be likely to arrest and

charge more of those reportedly making the threats and would be more likely in these cases to

refuse or oppose bail, leaving it to the courts to take the responsibility of deciding whether

those accused of making such threats should remain at liberty. The police are inevitably faced

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in these cases with a conflict of interest between the person threatened and the maker of the

threat. If the police would be liable in damages to the former for not taking sufficiently strong

action but not to the latter for acting too strongly, the police, subconsciously or not, would be

inclined to err on the side of over-reaction. I would regard this precisely as inducing in them a

detrimentally defensive frame of mind. Similarly with regard to their likely increased focus on

these reported threats at the expense of other police work.

133. The second public policy consideration which I would emphasise in the present context is

the desirability of safeguarding the police from legal proceedings which, meritorious or

otherwise, would involve them in a great deal of time, trouble and expense more usefully

devoted to their principal function of combating crime. This was a point made by Lord Keith of

Kinkel in Hill and is of a rather different character from that made by Lord Steyn in para 30 of

his opinion in Brooks - see para 51 of Lord Bingham's opinion. In respectful disagreement with

my Lord, I would indeed regard actions pursuant to the liability principle as diverting police

resources away from their primary function. Not perhaps in every case but sometimes certainly,

the contesting of these actions would require lengthy consideration to be given to the

deployment of resources and to the nature and extent of competing tasks and priorities."

[111] In Michael Lord Toulson (at para 121) was inclined to accord force to criticism of the fear of defensive

policing. But he held that it was possible to imagine that liability might lead to police forces changing their

priorities, and that it was hard to see it as in the public interest that the determination of priorities should be

affected by the risk of being sued. He added that the one thing of which any court could be sure is that the

payment of compensation would have to come from police budgets, at the expense of spending on policing

unless an increase in budgets from the public purse were to ensue.

[112] It should be acknowledged that it is sometimes asserted that that part of the policy considerations

which related to the danger of defensive policing lacks hard evidence. That may technically be so, since

there has not existed the kind of duty of care which would test it in practice. But like Lord Brown in Smith I for

my part would regard that risk as inevitable. It can scarcely be doubted that we see the consequences of

defensive behaviour daily in the actions of a great many public authorities. I do not see that it can seriously

be doubted that the threat of litigation frequently influences the behaviour of both public and private bodies

and individuals.

[113] However that may be, the several statements of the policy considerations, especially in three different

decisions of the House of Lords, are simply too considered, too powerful and too authoritative in law to be

consigned to history, as I do not understand Lord Reed to suggest that they should be. Nor do I see it as

possible to treat them as no more than supporting arguments. As all of them, and especially the speech of

Lord Hope set out at para 10 above, make clear, the statements are intended as ones of general principle.

No doubt Hill was decided at a time when Anns v Merton London Borough Council was understood to

provide the test for the existence of a duty of care. But the error of Anns was exposed at the latest in 1991 in

Murphy v Brentwood Council, whilst Brooks and Smith were decided in 2005 and 2008 respectively. In any

event, the error of Anns lay chiefly in its effective imposition of an often impossible burden on a defendant to

demonstrate that public policy ought to negate the existence of a duty of care. The relevance of

considerations of public policy, such as those so fully adumbrated in Hill, Brooks and Smith, and the fact that

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they may indeed demonstrate that a duty of care is not owed, remains unchanged by the different

formulation in Caparo.

[114] In Michael (at para 97) Lord Toulson helpfully brought into the analysis the general reluctance of

English law to impose liability in tort for pure omissions. Smith v Littlewoods Organisation Ltd [1987] AC 241,

to which he referred, is a good example. There, the claimant suggested that the occupiers of a disused

cinema, awaiting demolition and reconstruction as a shop, owed a duty to exclude vandals from getting in, so

that they were liable to neighbours when the vandals started a fire which spread to adjoining properties. That

was, no doubt, a case of pure omission, and was so analysed by Lord Goff, although not by the majority of

the House of Lords, through Lord Mackay. It is clear that the reluctance of the common law to impose liability

in tort for pure omissions is another reason why the police do not owe a duty of care to individuals who turn

out to be the victims of crime (as in Hill or Smith) or to witnesses (as in Brooks) or to suspects (as in Calveley

v Chief Constable of Merseyside and Elguzouli-Daf ). But analysis in terms of omissions cannot be the only,

or sufficient, reason why such duties of care are not imposed, nor why there is very clearly no duty owed to

individuals in the manner in which investigations are conducted.

[115] There are at least two reasons why this is so. First, the rule against liability for omissions is by no

means general. In Smith v Littlewoods Organisation Ltd Lord Goff identified at any rate several situations

where such liability is imposed. One is where there has been an assumption of responsibility towards the

claimant. The law readily finds such an assumption in many common situations, such as employment,

teaching, healthcare and the care of children, and imposes liability for omitting to protect others. It could

equally readily do so in the case of police officers with a general public duty to protect the peace, but it does

not. Another was epitomised by Goldman v Hargrave and by Thomas Graham Ltd v Church of Scotland

1982 SLT (Sh Ct) 26, a case very similar to Littlewoods where the occupier knew of previous incursions by

third parties and where Lord Goff accepted that liability was rightly imposed for omission to keep them out. If

the occupation of land is treated as imposing liability for an omission, the law could, and might, have said

that the same applies to police officers where they are aware of the risk posed by (or to) those they are

investigating, but it does not.

[116] For the same reasons, the question whether a statutory public duty gives rise to a private duty or not is

a fluid one. Stovin v Wise and Gorringe are examples where no private duty of care was held to exist. Barrett

v Enfield London Borough Council, decided after Stovin v Wise, accepted at least in principle the possibility

of such a duty in relation to the different statutory scheme there in question.

[117] Secondly, there is no firm line capable of determination between a case of omission and of

commission. Some cases may fall clearly on one side of the line, and Hill may have been one of them. But

the great majority of cases can be analysed in terms of either. Michael could be said to be a case of

omission to respond adequately to the 999 call. But it was argued for the claimant as a case of a series of

positive acts, such as, for example, misreporting the complaint when passing it from one police force to

another. Barrett v Enfield London Borough Council was a case of mixed acts (allegedly negligent

placements) and omissions (to arrange adoption). Phelps v Hillingdon London Borough Council similarly

involved allegedly negligent examination, also a positive act.

[118] The ultimate reason why there is no duty of care towards victims, or suspects or witnesses imposed

on police officers engaged in the investigation and prevention of crime lies in the policy considerations

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examined above and, in the end, in the clear conclusion, as expressed by Lord Hope in Smith (see para 10

above) that the greater public good requires the absence of any duty of care.

[119] Likewise the policy considerations will be directly relevant to any suggestion that a duty of care exists

towards individuals such as victims, witnesses or suspects via the route of foreseeable risk of psychiatric

harm. The law remains uncertain about when a claimant can properly be regarded as a primary or a

secondary victim for the purposes of recovering damages for psychiatric harm: see Frost v Chief Constable

of South Yorkshire Police [1999] 2 AC 455, McLoughlin v Grovers [2001] EWCA Civ 1743 per Hale LJ as she

then was, and Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. But it is clear that no

duty of care towards victims of crime, witnesses or suspects can be erected on the back of foreseeability of

psychiatric harm, and the reason clearly lies in the policy considerations.

[120] Thus whilst there remains a duty of care imposed on police officers not by positive action to occasion

physical harm or damage to property which ought reasonably to be avoided, there is no duty of care towards

victims, witnesses or suspects in the manner of the investigation of offences or the prevention of crime. That

also means that there is no duty of care to protect individuals from harm caused by the criminal acts of third

parties.

[121] Of course, where action is brought on the basis of physical harm done by positive act of the police, it

will succeed if but only if negligence is proved. As Lord Reed explains at para 75, policing may sometimes

involve unavoidable risk to individuals. It may very often involve extremely delicate balancing of choices.

Crowd control, hostage situations, violent outbreaks of crime and the allocation of scarce resources where

there are large numbers of persons with the potential to offend, even at the terrorist level, are simply

examples. Sometimes decisions may have to be made under extreme pressure; at other times they may

remain very difficult notwithstanding time for analysis, and there may be a high level of risk that they turn out

to be wrong. The question is always not whether, with hindsight, the decision was wrong, but whether in all

the circumstances it was reasonable.

THE PRESENT CASE

[122] I agree that the present case is one of positive act, namely arresting the suspect, which directly

caused physical harm. It matters not that the suspect was the first to be in physical contact with the claimant

given that the collision with her was by him plus two of the policemen.

[123] I confess that I have pondered hard about the finding of negligence. That the suspect might run away

was known, but the limited risk that he not only would do so, but also would cannon into a pedestrian if he

did, had to be balanced against the duty to effect an arrest promptly. Many might regard the decision when to

effect the arrest as a marginal one. But it is important that appellate courts do not second guess trial judges

who have had the opportunity to hear the witnesses in person, as well as to examine the CCTV in the light of

the way the case is argued. It does not seem to me that even if one were to entertain doubts about how one

might oneself have decided the issue, it can be right to displace the finding of the trial judge unless there is

error of principle. It is impossible to say that the judge was not entitled to attach the significance he did to the

fact that Mr Willan had lost sight of the claimant at the moment he moved in.

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[124] In those circumstances I would allow the appeal and restore the finding of the trial judge. The case

must be remitted to the court of trial for the still outstanding assessment of damages.

Appeal allowed.