Hill immunity misunderstood? Robinson v West Yorkshire Police - Supreme Court
In a landmark decision clarifying recent ‘uncertainty and confusion’ in the law of negligence, the Supreme Court has held that the police do owe a…
Robinson v West Yorkshire Police - Supreme Court (Lady Hale, Lord Mance, Lord Reed, Lord Hughes, Lord Hodge)
In a landmark decision clarifying recent ‘uncertainty and confusion’ in the law of negligence, the Supreme Court has held that the police do owe a duty of care to others to avoid causing personal injury by positive acts, even in the discharge of their core policing functions.
In July 2008, the claimant (then aged 76) was injured when knocked over by two police officers in the course of the arrest of a suspected drug dealer. She suffered personal injury.
At first instance, the court found that the officers had been negligent in not taking care to avoid injury to members of the public (an accepted risk they sought to avoid), in failing to see the claimant, and for intervening when they did instead of waiting. It was further negligent for the officers’ colleagues not to have been at the scene when the arrest was made. However, applying the so-called immunity under Hill v West Yorkshire Police, as applied to acts as well as omissions in Desmond v Nottinghamshire Police, the claim nevertheless failed.
On appeal, the Court of Appeal unanimously held that most claims against the police for negligent acts or omissions in the investigation or suppression of crime and the apprehension of offenders would fail as the courts would not impose a duty as fair, just and reasonable under the third limb of the test in Caparo v Dickman. Although cases of outrageous negligence might escape that analysis, this was not such a case.
Further, even if a duty of care did arise, it was not breached as the current case concerned an omission in failing to stop the suspect from causing the claimant to fall, rather than a positive act. The Court of Appeal was also critical of the first instance finding of negligence: it would have held that there was no negligence by the officers in the circumstances. Please refer to Weightmans’ legal update (5 February 2014) for more details of these earlier decisions.
Supreme Court decision
Lord Reed (Lady Hale and Lord Hodge agreeing) delivered the leading judgment. Lords Mance and Hughes delivered their own judgments. Despite differences of analysis, all agreed a duty of care arose and the appeal was allowed unanimously. This update concentrates on the majority view and readers are encouraged to scrutinise the differing opinions separately.
Paraphrasing, the issues for the Supreme Court were:
- Does the existence of a duty of care always require the application of the Caparo test to the facts of each case?
- Do the police enjoy an effective immunity when investigating or suppressing crime, or are they under a general duty not to cause injury under normal principles? If the latter, does it matter if the alleged negligence is an act or omission?
- Again if the latter, is this an act or omission case?
- Did the officer owe the claimant a duty in this case?
- If so, was the Court of Appeal permitted to overturn the first instance finding in that regard?
- If any duty of care was breached, did that cause the claimant’s injuries?
The Supreme Court considered each of the issues:
- The Supreme Court dismissed the notion that the imposition of a duty of care in all negligence claims requires the application of the three-stage test in Caparo. Rather, the approach should be one of incremental development of novel categories of negligence by analogy with established categories. The present case was not novel and called for the application of established personal injury principles.
- As to any special position enjoyed by the police, the Supreme Court took the opportunity to correct the misunderstanding of Hill v West Yorkshire Police in the lower judgments and submissions in this case. Hill is not authority for a general immunity from suit for anything done in the investigation or prevention of crime. Liability for personal injury arises under ordinary principles. Immunity under Hill arises only in relation to the protection of the public from harm through the performance by the police of their function of the investigation of crime (para. 55).
- The Supreme Court observed that the present case involved alleged carelessness by officers in circumstances in which it was reasonably foreseeable that the claimant would be injured: a case of a positive act.
- It was reasonably foreseeable that in carrying out the arrest when and where they did a pedestrian such as the elderly claimant may be knocked over and injured. That reasonably foreseeable risk of injury was enough to impose a duty of care.
- The Court of Appeal had been right to stress the importance of not imposing unrealistically demanding standards of care on operational police officers. However, one of the first instance court’s findings was that one of the officers had been careless in not seeing the claimant only a yard away from him in circumstances in which he accepted he would have walked away had he done so. That alone was sufficient in the eyes of Lord Reed (Lady Hale and Lord Hodge agreeing). Although Lord Mance was less persuaded (as was Lord Hughes) and did not consider this to be an appropriate case in which to interfere with the first instance assessment.
- The claimant was injured in the tussle that followed the officers’ intervention. There was no break in the chain of causation. The claimant was injured as a result of the officers’ breach of their duty to protect her.
As noted, the appeal was accordingly allowed with the case to be remitted to the county court for damages to be assessed.
This decision could be thought to turn modern thinking on the law’s approach to negligent operational and investigative policing on its head. The Supreme Court has taken the opportunity presented to clarify the correct approach to the establishment and imposition of duties of care in a decision of far-reaching importance.