Personal injury analysis: Duncan Fairgrieve, senior fellow in Comparative Law at the British Institute of International and Comparative Law and barrister at 1 Crown Office Row, examines the Supreme Court’s decision that the police do not enjoy a general immunity from suit in respect of their negligent acts when investigating or preventing crime—they are 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.
What are the practical implications of the decision?
In this case, the Supreme Court held that there is no general rule denying liability of the police in the prevention and investigation of crime and that the police owe a duty of care to avoid causing, by a positive act, foreseeable personal injury to another person in accordance with general principles of tort law.
The defence lawyers described this as the most important case concerning the police in a generation. The decision has the potential to affect many other areas of law beyond the core scope of civil liability of the police, given that broad statements of principle were made as to duties of care in tort law and concerning the liability of public authorities in particular. Primacy was thus given to ‘orthodox’ tort law rules, rather than the more recent tendency of courts in balancing policy considerations to determine whether it is just, fair and reasonable to recognise a duty of care.
This decision may well give rise to a re-calibration of the law in other areas, such as the liability of social services (see the very restrictive approach of the Court of Appeal recently in CN and another v Poole Borough Council  EWCA Civ 2185,  All ER (D) 34 (Jan)).
What was the background?
The facts of this case were relatively simple. The appellant, a lady in her late 70s, suffered injuries when, as a passer-by on a busy street, she was knocked to the ground and fallen on by two policemen and a suspected drug dealer as the officers struggled to arrest him.
What did the Supreme Court decide?
The Supreme Court unanimously found the police liable for the injuries caused to the appellant. Lord Reed, giving the lead judgment, dismissed arguments for the defendant that there was a general rule denying liability of the police when discharging their function of preventing and investigating crime, holding that this was a misinterpretation of previous cases, in particular Hill v Chief Constable of West Yorkshire  2 All ER 238. On the contrary, the police owe a duty of care under the ordinary principles of negligence as do other persons, to avoid causing foreseeable personal injury to another person.
Lord Reed’s leading judgment addresses a series of fundamental issues of tort law and public law. The primary of those is the re-affirmation of the incremental approach to the recognition of a duty of care in tort law. Lord Reed rejected robustly the notion that the three-stage Caparo test should apply as a matter of course in all cases of negligence. As Lord Reed underlines, there is no single unitary test which can be applied in all cases in order to determine whether a duty of care exists—rather the courts should adopt an approach anchored in precedent and based on the development of the law incrementally and by analogy with established authorities.
Second, this retreat from the application of the Caparo test by judges in all cases is likely to have an immediate effect on the way that tort law cases are approached. As Lord Reed noted, the routine weighing of policy factors, as enshrined in the third limb of the Caparo test, should no longer occur—such policy factors are only relevant in determining whether a duty of care should be recognised in a novel situation, when the courts have to consider whether its recognition would be fair, just and reasonable.
Third, from a public law perspective, Lord Reed seeks to set out clear principles regarding the liability of public authorities. He underlines the fact that the private law rules of tort apply to public bodies and private persons alike. Orthodox rules of tort law are thus applicable to public authorities just as much as they are to a private person, with only certain limited exceptions—for instance where there is statutory authority for the conduct in question.
Fourth, applying these principles to the police, Lord Reed re-affirmed the so-called omissions principle, whereby public authorities, like private individuals and bodies, are generally under no duty of care to prevent the occurrence of harm. As Lord Reed notes, other than in specific circumstances, public authorities generally owe no duty of care towards individuals to confer a benefit upon them by protecting them from harm. On the other hand, the police can be liable for negligently causing physical damage to others. In the instant case, the injury of the appellant was found to have been caused by a positive act of the police in deciding to conduct the arrest in circumstances in which it was not only reasonably foreseeable but was actually foreseen by the police that the suspect would attempt to resist arrest. 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. The judge at first instance was entitled to have found on the facts that the police had been negligent. The chain of causation was not interrupted by the suspect’s voluntary decision to resist arrest, as that act was the very one which the defendant was under a duty to guard against. The Chief Constable was thus found liable and the case was remitted for assessment of damages.
Duncan Fairgrieve appeared with Nicholas Bowen QC and David Lemer for the appellant in this case.
Interviewed by Robert Matthews.
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