Robinson v Chief Constable of West Yorkshire Police
| Jurisdiction | England & Wales |
| Judge | Lady Justice Hallett, Vice President of the CACD,Mr Justice Arnold,Lord Justice Sullivan |
| Judgment Date | 05 February 2014 |
| Neutral Citation | [2014] EWCA Civ 15 |
| Docket Number | Case No: B3/2013/1552 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 February 2014 |
[2014] EWCA Civ 15
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Huddersfield County Court
Mr Recorder Pimm
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Hallett Vice President of the CACD
Lord Justice Sullivan
and
Mr Justice Arnold
Case No: B3/2013/1552
Ms Ceri Widdett instructed by Grieves Solicitors for the Appellant
Mr Ian Skelt instructed by Office of the Force Solicitors for the Respondent
Introduction
Mrs Robinson, the Appellant, is the victim of crime, but not in the traditional sense. On 29 July 2008 she was walking down a relatively busy street in Huddersfield when she became caught up in the arrest of a drug dealer. She was knocked to the ground and injured. By a claim form dated 11 July 2011 she sued the local Chief Constable for damages for personal injury. The only question for this court is the extent to which the Chief Constable is liable, if at all, in negligence for what happened to her.
Factual Background
There is little, if any, factual dispute. DS Willan is the allegedly negligent officer. He was on an unrelated errand when he spotted a man called Williams dealing in 'Class A' drugs. He contacted a senior officer about what he should do. It was agreed he should make an arrest as quickly as possible, and preferably whilst Williams was still in possession of the drugs. He called for back up and considered possible locations for the arrest. He concluded it had to be on the street. The intention was to have two officers approach Williams from the front (Willan and Dhurmea) and two (Roebuck and Green) from the rear in a "pincer movement" in case he should try to escape. Williams was to be seized, pushed against an adjacent wall, restrained and arrested.
The incident was captured on Closed Circuit Television footage. One can see the Appellant walking up the road. Within a very short time of her passing Williams and his group, two well built officers in plain clothes approach, reveal themselves as police and seize hold of him. Unfortunately, Williams then struggles so violently, his momentum takes the group up the street towards the Appellant. They knock into her and all fall to the ground with the Appellant underneath. It takes Roebuck and Green three seconds to reach the melee. Others try to intervene in the arrest and to get rid of the drugs.
Trial Judge's Findings
Mr Recorder Pimm tried the case some five years later. I paraphrase his conclusions as follows:
i) The arrest called for more careful planning and elimination of risk than that demonstrated.
ii) The officers should have waited and selected a safer or better opportunity to carry out the arrest. There was no urgency.
iii) There was a significant and foreseeable risk that Williams would try to escape.
iv) The risk of injury to Mrs Robinson in particular was foreseeable given her proximity to the arrest. Her physical presence was sufficient in itself to amount to proximity in law.
v) DS Willan was under a duty which he acknowledged to consider the risk to her and other members of the public near by.
vi) Ds Willan failed to notice Mrs Robinson as he should have done.
vii) There was no evidence to support the assertion that had all four officers gathered to arrest him, Williams might have recognized them as police officers.
viii) DS Willan could and should have minimized the risk by deploying Roebuck and Green closer to the scene at the time of the strike.
ix) DS Willan lost his hold on Williams; he did not jump on him recklessly. It was Williams' struggling that took the melee to where Mrs Robinson was walking.
x) This was a case of negligence but not outrageous negligence.
xi) However, the "immunity" from suit for police officers engaged in the apprehension of criminals described in the case law applied and, despite the finding of negligence, the claim must be dismissed.
The Appellant has permission to appeal the finding in relation to "immunity". The Respondent wishes to appeal the findings of the existence of a duty and negligence, but supports the ultimate decision.
The appeal
Ground 1: the Recorder was wrong in law to apply the three — stage ("Caparo") test to the Appellant's case of direct physical harm
Miss Widdett began by taking us back to basics; the starting point being the decision in Donoghue v Stevenson [1932] AC 562, at p 580 and Lord Atkin's famous formulation of the general test for determining when a duty in negligence exists:
"The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question "Who is my neighbour?" receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."
She argued that for the vast majority of cases to establish a duty of care all that is required, therefore, is a reasonable foreseeability of harm and sufficient proximity in law. Public policy arguments play no part.
She sought to derive support for this proposition from the speeches in Home Office v Dorset Yacht Company Limited [1970] AC 1004 in which the House of Lords examined the application of the Donoghue v Stevenson principle to a claim against the Home Office for damage caused by inmates who had escaped from a Borstal institution. The majority of the House were content to impose a duty. Miss Widdett submitted that both Lord Reid and Lord Diplock explicitly recognised in their speeches that what Lord Reid called "the statement of principle" in Donoghue v Stevenson ought to apply unless there was some justification for its exclusion, as for example in negligence causing economic loss, where the principles of Hedley Byrne v. Heller [1964] A.C. 465 would apply. The public policy argument in respect of the work of prison officers was rejected.
Miss Widdett accepted that in the later decision of Caparo v Dickman [1990] 2 AC 605 the House of Lords appeared to modify the simple Donoghue v Stevenson test by introducing a third element so that the test for determining whether a duty of care may exist now consists of
i) the foreseeability of damage,
ii) a relationship of "proximity" and
iii) the court considers it fair, just and reasonable to impose a duty.
However, the claim in Caparo was for economic loss, not for direct physical harm. Accordingly, she interpreted Caparo as imposing the third stage of the test on claims for indirect harm only in which, she accepted, public policy considerations may be engaged. She did not accept the decision in Caparo was an attempt by the House of Lords to impose a degree of control over the growth of the law of negligence generally. She firmly resisted any suggestion that the third stage could apply to an action in negligence for damages for physical harm caused as a direct result of the alleged tortfeasor's actions.
This brings me to the nub of Miss Widdett's argument. It is premised almost entirely on the assertion that this is a case of a police officer causing "direct physical harm to a member of the public" whilst investigating and/or suppressing a crime. I put to one side for the present the fact that Mr Skelt argues this is not a case of direct physical harm at all but a case of officers failing to prevent harm by a third party. If so, on Miss Widdett's argument the full Capraro test would apply. Miss Widdett insists that it is not a case of indirect harm and public policy considerations do not arise. There is no need for the court to ask itself whether it is fair just and reasonable for the action to proceed. Indeed, it would be wrong to ask the question. She argued forcefully that there is a duty on all police officers not to cause direct physical harm to members of the public whether or not they are engaged in the investigation and suppression of crime and that duty should be enforced. She distinguishes the various authorities to which I shall come in a moment by trying to allot them all into categories of indirect harm, economic loss or psychiatric injury, all 'problem areas' where, she accepts, the courts have been loathe to allow an expansion of the law of negligence without constraint.
When pressed to explain why she drew such a dramatic distinction between direct and indirect harm, she focused on the wrong doing (the "culpa") at the heart of actions in negligence. She insisted there is a "higher moral culpability" on the part of the officer who negligently and directly causes physical harm than there is on the part of the officer who negligently but indirectly causes physical harm or the officer who negligently causes psychiatric harm or purely economic loss.
She placed considerable reliance upon a passage in the speech of Lord Keith in Hill v Chief Constable West Yorkshire Police [1988] 1 AC 53 a decision which Mr Skelt argues is directly in point and contradicts her argument. Mrs Hill's daughter was one of the victims of the serial killer Peter Sutcliffe known in the media as the Yorkshire Ripper. Mrs Hill sued the West Yorkshire Constabulary for their allegedly negligent failure to prevent her daughter's death. Lord Keith who gave the only fully reasoned speech summarized the issue on appeal to the House of Lords as follows at page 59 A/B:
...
To continue reading
Request your trial
-
Curtis (a.k.a Jason) Davis v Commissioner of Police of the Metropolis
...decisions on whether the police owed a duty of care. He did not suggest it was wrong. 114 Mr Beggs referred me to Robinson v Chief Constable of West Yorkshire Police [2014] EWCA Civ 15, [2014] PIQR P14 in which the Court of Appeal again found that no duty of care was owed, in this case to......
-
Smyth and Others v The Commissioner of an Garda Síochána and Others
...Q.B. 722. Rigby v. Chief Constable of Northamptonshire [1985] 1 W.L.R. 1242. Robinson v. Chief Constable of West Yorkshire Police [2014] EWCA Civ 15, (Unreported, Court of Appeal of England and Wales, 5th February, 2014). Ruby Property Co. Ltd. v. Kilty (Unreported, High Court, McCracken J.......
-
CLG and Others (Claimants/Appellants) v Chief Constable of Merseyside Police (Defendant Respondent)
...reasonable to protect that person." Such a duty of care is in direct conflict with the principle in Hill. 20 In Robinson v Chief Constable of West Yorkshire Police [2014] EWCA Civ 15, [2014] P.I.Q.R. P238 the claimant was walking along the street when she was knocked to the ground and injur......
-
Darren Rathband and Debbie Essery [appointed under CPR 19.8(b) to represent the Estate of David Rathband Deceased] v The Chief Constable of the Northumbria Constabulary
...the benefit of the other." 85 The applicability of this test to negligence claims against the police was affirmed in Robinson v Chief Constable of West Yorkshire Police [2014] EWCA Civ 15, [2014] PIQR 238. 86 Although all three elements of this test are in dispute, the real issue between th......
-
The 'Mitchell' Reforms
...to delay the trial date Non-deliberate delay (i.e. human error) will not constitute a "good reason": Thevarajah v Riordan & Ors [2014] EWCA Civ 15 The defendants were subject to an unless order which required them to disclose certain information, failing which their defence would be str......