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Negligence and the Duty of Care; the Demise of the Caparo Test; and Police Immunity Revisited: Robinson v Chief Constable of West Yorkshire

Document Cited in Related
Vincent
Date01 January 2019
Published date01 January 2019
DOI10.3366/elr.2019.0526
Author
Pages82-88
INTRODUCTION

Walking down a busy street in Huddersfield one day, Mrs Robinson, a frail lady well into her 70s, suddenly found herself at the bottom of a ruck involving two sturdy police officers and a suspected drug dealer. DS Willans and PC Dhurmea had been tailing Williams, the suspect, and chose their moment to effect an arrest as he emerged onto the street from a betting shop. Williams struggled to get away and Mrs Robinson, who was walking past at that moment, was knocked to the ground. While the officers had planned the arrest with the risk to passers-by in mind, the need to apprehend Williams while he was still in possession of the evidence put them under some pressure to seize their opportunity. In the event, DS Willans simply failed to notice Mrs Robinson. She raised an action for damages in respect of the injuries she sustained. Pimm J at first instance found the police negligent but held them immune from civil suit in respect of acts carried out in the course of apprehending a criminal. Mrs Robinson appealed and a cross appeal against the finding of negligence was raised by the police. In the Court of Appeal the appellant's case was dismissed and the cross appeal upheld.1 Mrs Robinson appealed to the Supreme Court where her appeal was upheld unanimously.2

 THE COURT OF APPEAL

Discussion in the Court of Appeal turned on the applicability of the Caparo tripartite test to the circumstances.3 Following consideration of Hill v Chief Constable of West Yorkshire 4 and other authorities, Hallett LJ rejected the view that the police are immune from civil suit for harm arising from their operations in the detection and suppression of crime.5 She did however hold that most claims against the police will fail the third stage of the tri-partite test, that is, it will not normally be fair just and reasonable to impose a duty of care on the police.6 Counsel for the appellant, Ms Widdett, had contended that the instant case was one of direct physical harm to which the fair just and reasonableness criteria did not apply.7 In contrast, Mr Skelt for the respondents sought to characterise the case as one of failure to prevent harm by a third party and therefore as an omission.8 The contention that Mrs Robinson was knocked down by Williams rather than the police officers was borne out by the evidence (there was CCTV footage of the incident), but Hallett LJ determined that the question of liability should not depend on who it was that knocked the appellant down.9 The point was disposed of in the Supreme Court by Lord Reed as a matter of causation. Clearly the chain of events was initiated by the police officers.10

The distinction drawn by Ms Widdett between direct and indirect harm along with her attempts to limit the application of the Caparo test by categorising circumstances to which the test did and did not apply found little favour in the Court of Appeal.11 Having considered the case law Hallett LJ drew the conclusion that: “the Caparo test applies to all claims in the modern law of negligence”.12 While consideration of case law involving the police had included cases in which a duty of care was recognised, the weight of authority appeared to favour no duty. Taking no duty as the general position, Hallett LJ declined to seek a basis for exceptions: “no judge, as far as I am aware, has attempted a definitive list of possible exceptions. I shall resist the temptation to be the first”.13 Disposing of the appeal Hallet LJ held that the police owed Mrs Robinson no duty of care. She found no proximity between the parties14 and moreover held that it would not be fair, just and reasonable to impose a duty of care on the police in the circumstances.15 Both findings are noteworthy. It might be thought that proximity in this case extended to passers-by within the area of potential danger,16 yet...

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