Costello v Chief Constable of Northumbria Police
| Jurisdiction | England & Wales |
| Judge | May L.J.,SIR CHRISTOPHER SLADE,HIRST L.J. |
| Judgment Date | 03 December 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J1203-16 |
| Docket Number | Case No.QBENF 97/1156/C |
| Court | Court of Appeal (Civil Division) |
| Date | 03 December 1998 |
[1998] EWCA Civ J1203-16
Lord Justice Hirst
Lord Justice May
and
Sir Christopher Slade
Case No.QBENF 97/1156/C
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEENS BENCH DIVISION
MR JUSTICE ASTILL
Royal Courts of Justice
Strand
London WC2A 21L
MR. B. HYTNER Q.C. and MR. P. ANDERSON (instructed by Messrs. Russell Jones & Walker, Newcastle) appeared on behalf of the Appellant.
MR. A. ROBERTSON Q.C.(instructed by Messrs. Crutes, Sunderland) appeared on behalf of the Respondent.
APPROVED JUDGMENT
Introduction
On 24.4.92, the plaintiff, a woman Police Constable serving in the Northumbria Police, was attacked and injured by a woman prisoner in a cell at South Shields Police Station. Nearby was Inspector Bell who did not come to the plaintiff's help when she was attacked. The plaintiff brought proceedings against the Chief Constable of Northumbria contending that her injuries were caused by his negligence or by that of Inspector Bell. Her statement of claim in substance alleges that Inspector Bell owed her a duty of care to go to her assistance and take reasonable steps to prevent her from being injured. It is said that the Chief Constable is liable for Inspector Bell's failure to do so under Section 48 of the Police Act 1964. The Statement of Claim also alleges that the Chief Constable was himself under a duty to the plaintiff to provide a safe or proper system of work and that he was in breach of that duty by failing to provide physical assistance to the plaintiff and thereby exposing her to unnecessary risk of injury. The Chief Constable's Amended Defence denied that he owed the plaintiff a duty of care and contended in the alternative that he was immune from liability.
This is an appeal by The Chief Constable from the decision of Astill J. given on 30.7.97 when he held in favour of the plaintiff on the issues of duty and breach of duty. The grounds of the Chief Constable's appeal are that the judge was wrong in law in holding that a police constable owes a duty of care to another police constable to go to the assistance of that other police constable if he or she is attacked.
The decision under appeal
The facts may be taken directly from the judge's judgment:
"On the 24th April 1992 with Sergeant Hall [the plaintiff] attended an address in South Shields concerning two young women who had absconded from Local Authority Care. Both women were taken to the Police Station in South Shields. Sergeant Andrew Wilson was the Custody Sergeant at that police station. The absconder, Donna Marie Brannan, was obstructive and reluctant to be taken into custody and in the Custody Office of the police station it was necessary for the plaintiff to restrain her. She struggled and was verbally abusive. Inspector Bell was the senior officer on duty at that time and he was present when the absconders were in the Custody Office. The plaintiff was instructed by one of the sergeants to take Donna Brannan to the female cell complex and remove her belt and shoes. This is normal practice particularly where a prisoner is aggressive and distressed. The plaintiff's recollection is that she walked with Donna Brannan alone to the female cell complex but Sergeant Hall gave evidence that he walked behind her and so accompanied her. The plaintiff said that during the journey to the cell Donna Brannan required to be restrained. She entered Cell 2 and the plaintiff asked her to remove her belt and shoes and she released her hold on her when she made that request. Sergeant Hall said that when he arrived at the female cell complex following behind, he saw Inspector Bell at or near the cell and so knowing that assistance would be at hand, he returned to the Charge Room as soon as he could because it was important for Sergeant Wilson not to be alone with the other female.
The plaintiff said that when she was in the cell with Donnan Brannan she was attacked as Brannan kicked and punched out at her. The plaintiff screamed for assistance while she was attempting to fend off the attack. She said that Brannan jumped onto her shoulder injuring her and shouted "I am going to bite your fucking face off".
The noise of this commotion and the shouts for help from the plaintiff were heard in the custody room by both sergeants. Sergeant Hall left very quickly and went immediately to the female cell complex where he said he saw Inspector Bell standing in the open door of the cell doing nothing. He went passed the Inspector into the cell to give assistance to the plaintiff. The essence of the Plaintiff's case is that Inspector Bell did nothing to assist."
Inspector Bell's evidence differed from that of the plaintiff and the two sergeants. He said that he was standing in the foyer to the cell complex and had gone there for the specific purpose of helping the plaintiff if she needed help. He said that, if he had heard a noise or disturbance, he would have gone straight into the cell to help. He agreed that he had a duty to do that. But he said that he heard no noise of any commotion and accordingly had no cause to go to the plaintiff's help.
The judge concluded that the evidence of the plaintiff and of Sergeants Hall and Wilson was the more reliable. He rejected Inspector Bell's evidence that he saw no reason to intervene. Sergeant Hall hurried from the Charge Room some distance away at the noise of the disturbance. There was good reason for Inspector Bell to help the plaintiff when she was attacked. The judge concluded that it was probable that, if Inspector Bell had intervened to help, the attack would not have occurred at all or at least it would have taken a different and less harmful form. He concluded that Inspector Bell was in breach of his police duty, a duty which he himself acknowledged.
These findings of fact, against which there is no challenge, led to the quite startling result that Inspector Bell, who was present for the acknowledged purpose of helping the plaintiff if she needed it, stood by and did nothing when the plaintiff was attacked and when he himself acknowledged that, on the facts found by the judge, it was his police duty to help.
The judge held in the plaintiff's favour that, on the facts which he found, the acknowledged breach of police duty was also in law a breach of duty entitling the plaintiff to claim damages. The judge accepted that the reason Inspector Bell went to the cell complex was to provide safety for the plaintiff if she were attacked. That was analogous to the provision of a safe system of work. Their relationship was wholly different from that of a police officer with a member of the public. The judge believed that the public would be greatly disturbed to discover that a police officer going about his duties who was injured by a violent prisoner because another police officer had deliberately desisted from helping had no civil redress against the Police Authority. It could be no answer that the injured police officer might be compensated from other sources. The judge accordingly held that the duty which Inspector Bell acknowledged was a duty owed at common law and actionable in tort. The form of the order of the court as amended which resulted from the judgment was that Chief Constable owed a duty of care to the plaintiff actionable in tort. The judgment itself embodies a finding that the Chief Constable was responsible for a breach of duty by Inspector Bell. It is less clear whether the judge was also holding that the Chief Constable was personally in breach of a duty analogous to that of failing to providing a safe system of work.
The parties' submissions
Mr Robertson Q.C. on behalf of the Chief Constable submits that the judge was wrong to impose on a police constable a positive duty to act in circumstances where to do so might put the police constable himself at risk. He submits that the law is slow to impose such positive duties. There is no general duty of care to prevent others from suffering loss or damage caused by the deliberate wrong doing of third parties, because the common law does not impose liability for pure omissions (see Lord Goff of Chieveley in Smith v. Littlewoods [1987] 1 A.C. 241 at 271B). There must to be exceptional circumstances before the common law will impose a positive duty to act. Such circumstances can exist where there is a special relationship, and Mr Robertson accepted that for some purposes at least there was a relationship between the plaintiff and the Chief Constable analogous to that between employer and employee. He accepted, I think, that the Chief Constable was under a positive duty to take reasonable care for the plaintiff's safety in what might compendiously be called housekeeping matters such as are the commonplace subject of employees' personal injury claims. He did not, however, accept that the law went so far as to impose a positive duty on one police constable to go to the assistance of another who was under attack.
Mr Robertson relied on Hill v. Chief Constable of West Yorkshire [1989] 1 A.C. 53 for the proposition that as a matter of public policy the police are immune from actions for negligence in respect of their activities in the investigation and suppression of crime; and that there is no general duty of care owed by the police to individual members of the public who might suffer injury through the activities of a criminal. He submitted that, even if the judge was correct in holding that there was in the present case a sufficient special relationship between Inspector Bell and the plaintiff, that was no reason for holding that the Chief Constable should not have immunity for...
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