Caparo revisited: Supreme Court clarifies scope of police duty of care

Paul Jarvis

Paul Jarvis
14 February 2018

Last week, in a landmark judgment, the Supreme Court held that the police do not have blanket immunity from suit in respect of their conduct in investigating or preventing crime, but owe a duty of care to avoid causing foreseeable personal injury to others in accordance with the ordinary principles of negligence.

In July 2008, a relatively frail lady then aged 76 was knocked to the ground and injured by a group of three men who were struggling with each other.  Two of those men were sturdily built police officers.  The third was a suspected drug dealer.  The lady sued the police in the tort of negligence.  The Recorder held that the police officers had owed the lady a duty of care to prevent injury and they had acted in breach of that duty but they were immune from suit (following Hill v Chief Constable of West Yorkshire [1989] AC 53) because at the time of the breach they had been engaged in the apprehension of a suspected criminal.  The lady appealed the Recorder’s determination.

In February 2014, the Court of Appeal dismissed her appeal (Robinson v Chief Constable of West Yorkshire Police [2015] EWCA Civ 15; [2014] PIQR P14).  Delivering the judgment of that court, Hallett LJ considered that the three-stage test in Caparo (Caparo Industries plc v Dickman [1990] 2 AC 605, 617 – 618) “applies to all claims in the modern law of negligence” (para.40).  That ‘test’ was formulated by Lord Bridge in Caparo and requires (a) that the harm caused to the claimant must be reasonably foreseeable as a result of the defendant’s conduct, (b) that the parties must be in a relationship of proximity, and (c) that it must be fair, just and reasonable to impose a duty upon the defendant.  In consequence, Hallett LJ held that “[t]he court will only impose a duty where it considers it right to do so on the facts” (para.40).  In her judgment “most claims against the police in negligence for their acts and omissions in the course of investigating and suppressing crime and apprehending offenders will fail the third stage of the Caparo test” (para.46) and so it was in Mrs Robinson’s case.  It was not fair, just or reasonable to impose a duty on the police to an individual such as Mrs Robinson because the police owed a wider duty to the public to prevent and detect crime, and that wider duty was incompatible with the existence of a narrower duty to prevent harm to members of the public when acting in compliance with that wider duty.

Dissatisfied for a second time, Mrs Robinson appealed to the UK Supreme Court and for her it was a case of third time lucky (Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4).  The hearing of that appeal took place in July 2017 and judgment was handed down on 8 February 2018.  Lord Reed held that the Court of Appeal’s conclusion that the three-stage test in Caparo applies to all claims in the modern law of negligence “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” (para. 21).  Instead, the correct approach to determine whether a duty of care exists in any given case is to look to the established authorities and, in novel situations, to develop the law “incrementally and by analogy” with those authorities.

At common law, public authorities, like the police, are generally subject to the same liabilities in tort as private individuals and that means a police officer can be liable in tort to a person who is injured as a direct result of his acts or omissions.  Referring to Hill, Lord Reed said that the judgment of Lord Keith in the that case was not authority “for the proposition that the police enjoy a general immunity from suit in respect of anything done by them in the court of investigating or preventing crime” (para. 55).  On a true reading of Lord Keith’s judgment in Hill, as explained by Lord Toulson in the case of Michael v Chief Constable of South Wales Police [2015] UKSC 2; [2015] AC 1732 (para. 37), Lord Keith had simply meant that the general duty owed by the police to enforce the law does not automatically carry with it a private law duty to members of the public.  Whether the police are under a private law duty of care to protect members of the public from personal injury will depend upon the application of the ordinary principles of the law of tort (para. 68).  The sort of policy considerations that were considered by Lord Keith are “unnecessary when existing principles provide a clear basis for the decision, as in the present appeal” (para. 69(1)).

The application of the ordinary principles of the law of negligence was sufficient to place the police under a duty of care to protect an individual from a danger of injury which the police themselves had created, but such a duty was unlikely to exist where the danger of injury came from a third party and not the police, in the absence of special circumstances such as an assumption of responsibility by the police.  In Mrs Robinson’s case, it was reasonably foreseeable that the suspect would resist arrest and attempt to escape and that vulnerable pedestrians could be injured in the ensuing scuffle.  Accordingly, in the opinion of Lord Reed, the police had owed Mrs Robinson a duty of care which they had breached.  For those reasons he allowed the appeal. Lady Hale and Lord Hodge joined in his judgment. Lord Mance and Lord Hughes gave separate judgments concurring in the result of the appeal but expressing reservations about the ease by which the others had minimized the relevance of policy considerations to the issue of whether the courts should recognise the existence of a duty of care on the police towards private citizens in the exercise of their public law powers.

For some considerable time the decision in Hill had been interpreted as offering virtual immunity on public policy grounds to the police for harm caused to private individuals by the police in the course of fulfilling their wider duty to the public to detect and prevent crime.  The effect of Hill was often that under the third part of the Caparo test, the courts declined to find that the police owed a duty of care to private individuals in the position of Mrs Robinson.  Following Robinson, the position has shifted.  Whether the police owe a duty of care to a person in her position will depend not on the Caparo factors but on whether there is established authority that recognizes the existence of such a duty.  Where the facts are novel, the court should seek to draw an analogy with the existing case law where possible, and that may just enable public policy considerations to sneak back into the court’s decision-making process.  On the facts of Robinson, the recognition of a duty of care was straightforward enough but it is not hard to imagine other cases where the court’s task will not be so easy.  Hallett LJ in the Court of Appeal suggested that “the Hill principle” (para. 44) was designed to prevent defensive policing, that is to say the immunity that decision purported to confer on the police was meant to discourage the police from acting too cautiously by, for example, refraining from arresting suspected criminals in the streets in case that endangers the safety of pedestrians like Mrs Robinson.  Whether the erosion of the Hill principle in Robinson will result in a return to so-called defensive policing remains to be seen but as a re-statement of the orthodox principles underpinning the tort of negligence this judgment is welcome.