The Line Of Duty: Police And The Duty Of Care

• Law Firm: Deka Chambers
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury, Professional Negligence
• Author: Andrew Warnock KC
• Published date: 10 April 2023

When do the police owe a duty of care in the tort of negligence?

1. For many years, cases involving alleged duties of care on the part of the police, were decided, or at least appeared to be decided, on policy grounds. In Hill v Chief Constable of West Yorkshire Police [1989] AC 53 ("Hill") the House of Lords held that the police were immune from actions in negligence in respect of their activities in the investigation and suppression of crime, because such a duty might lead to defensive policing and an unwelcome diversion of resources. Later cases such as Van Colle v Chief Constable of Hertfordshire [2008] UKHL 50 were also decided on policy grounds.
2. However, in Michael v Chief Constable of South Wales [2015] UKSC 2 ("Michael") and even more explicitly in Robinson v Chief Constable of West Yorkshire [2018] UKSC 4 ("Robinson"), the majority of the Supreme Court held that the true basis of these decisions was not policy at all, but rather a more ancient but sometimes overlooked common law rule against liability for omissions. In particular, at common law a person does not generally owe a duty of care to act to protect another person from harm or to confer a benefit on that person This rule applies equally to public authorities as it does to private citizens. Thus, where the police fail to adequately investigate a crime or protect someone from it, they will not ordinarily owe a duty of care, because their failing is one of omission.
   
   Distinguishing Between Acts and Omissions
   
   
   
3. Care needs to be taken in analysing what constitutes an act or omission for these purposes. Many negligence claims, where a duty of care could not sensibly be disputed, involve omissions. In Stovin v Wise [1996] AC 923 ("Stovin") , Lord Hoffmann explained:
   "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"
4. On the other side of the equation, it does not follow simply because the defendant has undertaken some acts that the case is not in truth one of omission. The facts of Stovin itself illustrate this. The claim was that a local authority should have exercised its statutory powers to remove a bank on private land adjacent to the highway because it impaired visibility for motorists. The local authority had taken some positive action including surveying the bank, deciding to remove it and contacting the landowner. These acts did not convert the case into one of commission because, Lord Hoffmann explained, the cause of the accident was not anything that the defendant did, but the fact that it had failed to improve visibility at the junction: i.e. an omission.
5. In N v Poole Borough Council [2019] UKSC 25 ("Poole"), Lord Reed preferred to draw a distinction between causing harm ("making things worse") and failing to confer a benefit ("not making things better), than the more traditional distinction between acts and omissions, in part because he considered that to better convey the rationale of the rule and in part because (as much conflicting case law testifies) the distinction between acts and omissions seemed to be found difficult to apply.
   
   Exceptions to the Omissions Rule
   
   
   
6. Where the case is one of omission (or not making things better), there remains the possibility of a duty of care arising where a recognised common law exception to the "no liability for omissions" rule applies. In Robinson and Poole the Supreme Court gave examples of situations where a duty to protect another person from harm caused by third party might arise. These include where the defendant itself created the source of danger, or assumed a responsibility to protect the claimant from harm, or had a special level of control over the source of danger, or had a status which created an obligation to protect the claimant from that danger.
7. It needs to be stated straight away that the fact that the defendant is a police force (or other public authority) with a power or even a public law duty to protect the claimant from the danger does not by itself mean that it has a status which creates a common law duty of care to do so. That is clear from the decisions of the Supreme Court in Gorringe, Michael Robinson and Poole themselves and was stated explicitly in Tindall v Chief Constable of Thames Valley Police [2022] EWCA Civ 25 ("Tindall"). As Stuart-Smith LJ said in Tindall, such an outcome would run contrary to the established principles...