The Line Of Duty: Police And The Duty Of Care - Professional Negligence - UK

Gunnar Larson g at
Tue Apr 11 10:21:28 PDT 2023

When do the police owe a duty of care in the tort of negligence?

For many years, cases involving alleged duties of care on the part of the
police, were decided, or at least appeared to be decided, on policy
grounds. In Hill v Chief Constable of West Yorkshire Police [1989] AC 53
("Hill") the House of Lords held that the police were immune from actions
in negligence in respect of their activities in the investigation and
suppression of crime, because such a duty might lead to defensive policing
and an unwelcome diversion of resources. Later cases such as Van Colle v
Chief Constable of Hertfordshire [2008] UKHL 50 were also decided on policy
However, in Michael v Chief Constable of South Wales [2015] UKSC 2
("Michael") and even more explicitly in Robinson v Chief Constable of West
Yorkshire [2018] UKSC 4 ("Robinson"), the majority of the Supreme Court
held that the true basis of these decisions was not policy at all, but
rather a more ancient but sometimes overlooked common law rule against
liability for omissions. In particular, at common law a person does not
generally owe a duty of care to act to protect another person from harm or
to confer a benefit on that person. This rule applies equally to public
authorities as it does to private citizens. Thus, where the police fail to
adequately investigate a crime or protect someone from it, they will not
ordinarily owe a duty of care, because their failing is one of omission.

Distinguishing Between Acts and Omissions

Care needs to be taken in analysing what constitutes an act or omission for
these purposes. Many negligence claims, where a duty of care could not
sensibly be disputed, involve omissions. In Stovin v Wise [1996] AC 923
("Stovin") , Lord Hoffmann explained:
"To hold the defendant liable for an act, rather than an omission, it is
therefore necessary to be able to say, according to common sense principles
of causation, that the damage was caused by something which the defendant
did. If I am driving at 50 miles an hour and fail to apply the brakes, the
motorist with whom I collide can plausibly say that the damage was caused
by my driving into him at 50 miles an hour"
On the other side of the equation, it does not follow simply because the
defendant has undertaken some acts that the case is not in truth one of
omission. The facts of Stovin itself illustrate this. The claim was that a
local authority should have exercised its statutory powers to remove a bank
on private land adjacent to the highway because it impaired visibility for
motorists. The local authority had taken some positive action, including
surveying the bank, deciding to remove it and contacting the landowner.
These acts did not convert the case into one of commission because, Lord
Hoffmann explained, the cause of the accident was not anything that the
defendant did, but the fact that it had failed to improve visibility at the
junction: i.e. an omission.
In N v Poole Borough Council [2019] UKSC 25 ("Poole"), Lord Reed preferred
to draw a distinction between causing harm ("making things worse") and
failing to confer a benefit ("not making things better), than the more
traditional distinction between acts and omissions, in part because he
considered that to better convey the rationale of the rule and in part
because (as much conflicting case law testifies) the distinction between
acts and omissions seemed to be found difficult to apply.

Exceptions to the Omissions Rule

Where the case is one of omission (or not making things better), there
remains the possibility of a duty of care arising where a recognised common
law exception to the "no liability for omissions" rule applies. In Robinson
and Poole the Supreme Court gave examples of situations where a duty to
protect another person from harm caused by third party might arise. These
include where the defendant itself created the source of danger, or assumed
a responsibility to protect the claimant from harm, or had a special level
of control over the source of danger, or had a status which created an
obligation to protect the claimant from that danger.
It needs to be stated straight away that the fact that the defendant is a
police force (or other public authority) with a power or even a public law
duty to protect the claimant from the danger does not by itself mean that
it has a status which creates a common law duty of care to do so. That is
clear from the decisions of the Supreme Court in Gorringe, Michael,
Robinson and Poole themselves and was stated explicitly in Tindall v Chief
Constable of Thames Valley Police [2022] EWCA Civ 25 ("Tindall"). As
Stuart-Smith LJ said in Tindall, such an outcome would run contrary to the
established principles set out in the authorities. Those principles include
that public authorities are subject to the same law of tort as private
individuals. An example of the status exception would be the duty of care
owed by an occupier.
As for the "control" exception, the classic example is Home Office v Dorset
Yacht [1970] AC 1004 ("Dorset Yacht"), in which prison officers brought
borstal trainees who were in their custody and under their control on to an
island and into close proximity with the boats which those trainees
subsequently damaged during an escape attempt. The officers were held to
owe a duty of care to the boat owners. The key point is that the third
parties who caused the damage were under the direct control of the prison
officers. However, the case could equally, and perhaps better, be analysed
as a "creation of danger" case, because the prison officers brought the
young offenders into close proximity with the boat owners in the first
place and then failed to supervise them.
The mere performance, or careless attempted performance, of their duties by
police officers (e.g.; undertaking an investigation of a crime or answering
a 999 call) does not amount to an assumption of responsibility. That much
is clear from the decisions in Hill and Michael. Some additional ingredient
is required.

Two recent examples

Two recent decisions involving police forces, one from the Court of Appeal
in England and Wales and one from the Court of Appeal in Northern Ireland,
have applied these principles, their outcomes falling on opposite sides of
the line.
In Tindall, the pleaded facts were that a driver, K, skidded on a patch of
black ice. He called 999 for assistance and whilst waiting the arrival of
the emergency services made attempts to warn approaching traffic. The
police arrived and put up a warning sign. Once Mr K was taken to hospital
in an ambulance, the police cleared the road of debris, removed their
warning sign and left the scene. Minutes later another car lost control on
the black ice. Its driver collided with an oncoming vehicle driven by Mr
Tindall. Both drivers were killed. Mr Tindall's wife brought a claim
against the police on her own behalf and administrator of his estate for
negligence, alleging that the officers who had attended the scene had owed
a duty to make the road safe. She alleged that by removing Mr K and/or by
erecting and then removing the warning sign, the police had created or
increased the danger to road users or had assumed responsibility to them.
The English and Welsh Court of Appeal held that the claim should be struck
out. The mere attendance of the police at a scene does not give rise to a
duty of care. Mr K had made his own decision to leave the scene, based on
his own private assumption that the police would behave in a certain way,
but the police had done nothing negligent to encourage that decision and
had not undertaken to him that they would do anything themselves. The
failure to keep a sign in place, which would not have been there at all had
the police not put it up in the first place, was a failure to confer a
benefit, rather than an intervention which made matters worse. The
"control" exception did not apply because the officers had come across a
potential danger for the existence of which they had not in any way been
responsible. As for the argument that there was an assumption of
responsibility by the police, the mere fact that the police had powers
which would have enabled them to make the road safe was not enough to
amount to an assumption of responsibility. There was nothing to
differentiate the relationship of the police with Mr Tindall from their
relationship with any other road user. What had occurred was a transient
and ineffectual intervention, which left the road no more dangerous than it
would have been had they not intervened at all.
In Magill v Chief Constable of the Police Service of Northern Ireland
[2022] NICA 49, the plaintiff was a marcher in an Orange Order parade whose
marching, he alleged in an Amended PoC, had been stopped by the police,
leaving the marchers trapped and subject to an attack by missile throwing
protestors. He was struck on the head. The Court of Appeal in Northern
Ireland held that although "finely balanced", his case "by a narrow margin"
got over the threshold and should be allowed to proceed to trial on the
basis that it was arguable that the police had assumed a responsibility for
the plaintiff's safety through their alleged positive actions. Although
expressed in assumption of responsibility terms, the reasoning of court was
that that the police, through a combination of careless acts and omissions,
had made a material contribution to the plaintiff's injury. Another way of
looking at the case, though not expressly put this way by the Court of
Appeal, would be that the police by their actions of forcing the marchers
to stop had added to or created the dangers faced by the marchers by
stopping them from escaping the attack. The Court of Appeal was not
impressed by the way in which the case was originally pleaded, which
involved a series of allegations of omissions concerning matters such as
adequacy of the number of deployed officers and a failure to prevent the
attacked, stating that it would have struck that case out.

Some older examples

Some older authorities, also illustrate the distinction. In Rigby v Chief
Constable of Northamptonshire [1985] 1 WLR 1242 the police were found
liable for negligently firing a cs gas cannister into the plaintiff's shop,
setting it on fire, in the course of an attempt to force out a dangerous
psychopath who had broken into it. In Knightly v Johns [1982] 1 WLR 349 a
senior police officer negligently directed a junior constable to ride
against the flow of traffic to close a tunnel after a road traffic
accident, leading to a collision with another vehicle. In both cases the
police had created the danger.
In Ancell v McDermott [1993] 4 All ER 355, a case with some similarity to
Tindall, the Court of Appeal held that the police had not owed a duty to
make safe a highway on which diesel had leaked from a third party's
vehicle. The case was decided partly on policy reasons, which would not be
an accepted line of reasoning today, namely that the imposition of a duty
to protect road users from hazards caused by others would be so extensive
as to divert the police from the proper functions of detecting and
preventing crime. However, the outcome of the case withstands and is
consistent with an acts/omissions analysis: the police had not done
anything to assume a duty of care to the claimant's husband, who tragically
skidded on the oil and was killed, nor had they created or added to the
danger, which existed independently of anything they had done or not done.
In the Scottish case of Gibson v Orr (1999) SC 420, a bridge collapsed
after heavy rainfall. The police assumed control and closed entry to the
bridge on one side, but not the other. They left the scene without putting
in place any warning sign on the open side of the bridge. Shortly
afterwards, a car entered the bridge at that side and fell into the river,
killing all but one occupant. The Outer house of the Court of Sessions held
the police liable on the basis that the police were not engaged in their
"core duty" of preventing crime and had assumed a responsibility to road
users. This involved "policy" reasoning. In Tindall, Stuart-Smith LJ held
that the decision was inconsistent with the weight of authority and did not
represent the law of England. What the police did was a failure to confer a
benefit (in the form of warning lights or otherwise) upon road users who
might drive along that stretch of the road. As in Tindall, theirs was an
ineffectual intervention, just as if they had failed to respond at all, or
had got lost, or had hit a tree on the way.

Is there an on-going role for policy?

In his article in the Cambridge Law Journal, "Maintaining the elegant
façade of the acts-omission distinction"1 Jonathan Morgan2 convincingly
argues that policy informs why some relationships readily give rise to an
assumed duty of care e.g., doctors to their patients, whereas others do
not: e.g., police to victims of crime. His point is not that there should
necessarily be a duty in the latter type of case, but that the courts
should be more ready to openly address policy factors which may more
satisfactorily explain why a duty of care is held to be assumed in some
cases, but not in others.
A similar point was made by Lord Hughes in his minority judgment (although
not dissenting in the result) in Robinson. He expressed the view that an
acts/omissions distinction does not satisfactorily explain all of the case
law, including Brooks v Commissioner of Police of the Metropolis [2005] 1
WLR 1495, a decision of the House of Lords which remains good law. That
case did involve positive action by the police, in the way that they had
treated the claimant as a witness to crime, causing him psychiatric injury,
yet a duty of care was not owed, essentially for policy reasons which had
been given in Hill.
However, where the law is established, policy has already been taken into
account in arriving at the relevant conclusion and hence it is no
ordinarily necessary for the court to reconsider it. This point was made by
Lord Reed in Robinson.3
There is, discernible in the case law, recognition of an underlying
distinction between the nature of the work undertaken by say the police,
firefighters and social workers, and others such as doctors and educators,
in that the former perform public functions of a nature which do not exist
in the private sphere. For example, the police have powers to detain people
and close public highways. Social workers may compulsorily remove children
from their families. They exercise such powers for the benefit of society
as a whole and not just an individual. Private citizens do not have such
powers or such wider obligations. By contrast, it is possible to see a
doctor privately or attend a private school and since a duty of care can
clearly exist in such cases, it is harder to argue that it should not exist
in comparable cases where the education or health service is provided by
the state. In Poole, which concerned the question of whether social workers
exercising child protection functions owed a duty of care to the children
in question, Lord Reed referred to the fact that the council's
investigating and monitoring of the children's position "did not involve
the provision of a service to them on which they or their mother could
reasonably be expected to rely". In other words, the "service" in question
was not akin to the sort of relationship as that which can exist between a
patient and their doctor, which could just as easily be governed by
contract as by tort.
The same underlying distinction can be discerned from Lord Toulson's
judgment in Michael, when he said: "It does not follow from the setting up
of a protective system from public resources that if it fails to achieve
its purpose, through organisational defects or fault on the part of an
individual, the public at large should bear the additional burden of
compensating a victim for harm caused by the actions of a third party for
whose behaviour the state is not responsible. To impose such a burden would
be contrary to the ordinary principles of the common law."
The Supreme Court in Robinson was unanimous in seeing an on-going need for
the weighing of policy consideration in genuinely novel cases where the
existing cases and the principles underlying them do not yield the answer.
An example is James-Bowen v Commissioner of Police of the Metropolis [2018]
UKSC 40 ("James-Bowen"), where the Supreme Court held that it would not be
fair, just or reasonable to impose a duty of care on the Commissioner to
defend litigation against her in a way which protected the economic and
reputational interests of police officers for whom she was vicariously

Further developments?

It seems that difficulties in deciding when there has been an assumption of
responsibility giving rise to a duty of care continue to arise in some
contexts, notwithstanding the apparently authoritative statements of the
law given by Lord Reed in Robinson and Poole.
In HXA v Surrey County Council [2022] EWCA Civ 1196 ("HXA") the Court of
Appeal considered two claims involving social workers. In one, the claimant
alleged that by resolving to seek legal advice as to whether to bring care
proceedings but failing to do so, and by resolving to undertake "keeping
safe" work but failing to do so, social workers had assumed a duty of care
to protect her from abuse within her family. In the other, the claimant
alleged that social workers had come under such a duty by providing him
with respite care on a number of occasions. At first blush, it is not
obvious how either of these cases involves social workers either making a
situation worse than it would have been had they not intervened at all, or
providing a "service" distinguishable from that considered by the Supreme
Court, and held not to give rise to a duty of care, in the Poole case.
However, the Court of Appeal, reversing decisions of the lower courts that
the claims should be struck out, held that a full investigation of the
facts at trial was necessary to ascertain whether a duty of care had been
It is worthy of note that the Court of Appeal did not mention Tindall at
all in their judgment. Much of the court's analysis was specific to the
statutory duties of local authorities under the Children Act 1989 ("the
1989 Act"). Given that the House of Lords held that child protection
legislation does not give rise to a cause of action for breach of statutory
duty (see X v Bedfordshire County Council [1995] 2 AC 633 ("X v
Bedfordshire")), it is questionable whether the 1989 Act could in fact give
rise to a tortious duty of care. However, regardless of the correctness or
otherwise of the Court of Appeal's approach, there is no reason to consider
that its decision affects the general position of the police, with the
possible exception of the role played by police officers alongside their
social work colleagues in the field of child protection, given that police
officers also have duties under the 1989 Act.


At least in so far as concerns the liability of the police, there is now a
clear and settled body of case law which points to when a duty of care will
or will not arise. The Supreme Court has made clear in Robinson that where
the existence or non-existence of a duty of care has been established, it
is unnecessary and inappropriate to reconsider the matter, save
exceptionally where the Supreme Court is invited to depart from an
established line of authority.
Occasionally a truly novel case may arise, such as was the case in
James-Bowen, where an assessment of what is just and reasonable, having
regard to underlying policy reasons, may be necessary. This is likely to be
One area of doubt, which arises from the Court of Appeal's recent decision
in HXA, is whether police officers engaged in child protection duties might
potentially be regarded as having assumed a duty of care to protect a
victim from harm caused by a third party. In X v Bedfordshire, one reason
given by Lord Browne-Wilkinson for not holding social workers liable in
negligence was that it would be unequal and unfair if a duty lay against
social workers but not the police. If it transpires social workers can be
sued, might the reverse hold true?
The Supreme Court has granted permission to the local authorities to appeal
in HXA and it is to be hoped that their decision will further clarify this
difficult area of law once and for all.
Andrew Warnock KC, along with Ella Davis, represented the Chief Constable
in Tindall v Chief Constable of Thames Valley Police and, along with Lisa
Dobie, the Commissioner in James-Bowen v Commissioner of Police of the
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