The Private Law Liability Of Public Authorities: The Curious Case Of Transport Arendonk BVBA v Chief Constable Of Essex Police

• Published date: 04 July 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury, Professional Negligence
• Law Firm: 1 Chancery Lane
• Author: Ms Laura Johnson and Henk Soede

Some of you may remember the 2020 High Court decision in Transport Arendonk v Chief Constable of Essex Police [2020] EWHC 212 (QB), landing as it did at a time when there was a flurry of strike out cases exploring the boundary of the concept of causing harm versus failing to confer a benefit in the context of the duty of care, following the recent 'trifecta' of Supreme Court authorities: Michael v Chief Constable of South Wales Police [2015] AC 1732; Robinson v Chief Constable of West Yorkshire Police [2018] AC 736; and CN v Poole Borough Council [2019] 2 WLR 1478¹. It was a curious case involving the theft of a consignment of sportswear from a lorry left in a layby when its driver was lawfully arrested. It was suggested by the haulage company claimant that the defendant police force owed it a duty of care to protect the contents of the lorry from the risk of theft. An application to strike out the claim for want of a duty of care was rejected both at first instance and on appeal. Elisabeth Laing J decided that the claim was "not clearly a case which can be analysed as a case in which the appellant failed to act or to provide a service" and that "the concept of assumption of responsibility is somewhat elastic". Since that the decision there have been further cases testing these legal issues, not least the Court of Appeal decision of Tindall v Thames Valley Police [2022] RTR 16². Almost seven years after the theft that gave rise to the claim the trial was heard over six days by HHJ Freeland QC, with judgment handed down on 25 May 2022. This note sets out the arguments and the court's conclusions. Laura Johnson QC and Henk Soede acted for the successful defendant.

Key facts

On 7 September 2015, C loaded a valuable consignment of branded sportswear in Belgium. The consignment was due to be transported to Sheffield. The lorry driver ("ML") was a Romanian national and employee of C. On 8 September 2015, ML arrived in England with the lorry. At about 9:25pm, ML was involved in a minor collision in a small village in Essex. ML did not stop the lorry and members of the public pursued it in their vehicle. At about 10pm the pursuers found the lorry parked in a layby on the A120, in an area of farmland. The police were called.

At approximately 10:43pm, D's officers arrived. They were concerned ML was intoxicated, a view that was not reassured by the discovery of an open bottle of fortified wine was found in ML's cab. ML was breathalysed and discovered to be almost three times over the limit. He was arrested and handcuffed for 'officer safety and to prevent escape'. ML's keys were confiscated and he was placed in the police car. Prior to leaving the layby with ML, D's officer had concluded that the lorry was secure and could be left overnight. ML was taken to the station. There was no dispute that ML had been lawfully arrested. There were a number of factual disputes: (i) whether ML had told the officers what was in the lorry; (ii) whether D's officers were otherwise aware that the contents of the lorry were valuable; and (iii) whether ML had asked the officers if he could telephone his employer to inform them of his arrest. ML did not participate in the proceedings and the evidence relied on consisted of a written statement given by ML to his insurers.

At the station, a recording was made of the events in the custody suite. ML behaved aggressively towards the police officers. At approximately 23:54, ML was told his rights, including the right to have someone informed of his arrest. ML stated that he wanted to call his "boss" but that he did not have the telephone number and that he needed to return to the lorry to retrieve it. D's custody officer informed ML that his colleagues would go to the lorry and get that number. ML then complained of heart pains. The on-call GP advised that ML should be taken to hospital. The two arresting officers took ML to hospital and remained there with him until approximately 5:37am on 9 September 2015, after which their shift ended.

At 7.53am on 9 September 2015, D's officers (not the arresting officers) attended the layby and found that the lorry curtains had been slashed and that the consignment had been stolen.

Pleaded claim

C brought proceedings against D in common law negligence to recover the value of the stolen consignment and the cost of repairing the vehicle damage caused by the thieves. It was alleged that D had assumed responsibility for the lorry and/or otherwise incurred a duty of care when D's officers (i) arrested ML; (ii) confiscated ML's keys to the lorry; (iii) prevented ML from contacting his employers at the layby; (iv) knew that the consignment was valuable; and (v) left the lorry unattended at the layby in circumstances where D's officers knew there was a real risk of theft. The central allegations of breach of duty included (but were not limited to) a failure to allow ML to contact his employers at the layby; a failure to take steps to secure the lorry upon ML's arrest (e.g., moving the lorry to a secure location or placing a patrol car on site following ML's arrest); and a failure by D's officers to contact ML's employers themselves. D denied that it owed a duty of care at all; alternatively, denied breach of duty; in the further alternative, denied that the alleged breaches caused C's loss. The focus of this note is...