One of the areas studied within ILSPA’s Legal Secretaries Diploma course is the law of negligence. This month we will be considering how the law in this area has developed and highlight some recent changes to the law on when a duty of care is owed.
The 1930s approach – “Love thy neighbour”
Ever since the case of Donoghue v Stevenson in 1932 created the law of negligence, the test to prove that a defendant has been negligent has been a simple 3-part formula:-
1) The claimant must be owed a duty;
2) That duty must be breached; and
3) The breach must cause the damage.
This test is sometimes referred to as the “neighbour principle” and its creator, Lord Atkin, broadly based the principle on the biblical concept of treating your neighbour as you would like to be treated.
The “’90s” approach – Caparo
The neighbour principles from the Donoghue case remained largely unchanged until 1990, when the case of Caparo v Dickman added 2 significant new elements to the 3-part neighbour test:-
1) First, it had to be fair, just and reasonable to impose a duty of care; and
2) Second, imposing a duty had to not be contrary to public policy.
Since the Caparo case, many public bodies such as the police have relied on the public policy grounds to protect themselves from potential negligence claims. The original reason the law allowed an exemption on public policy grounds was to prevent floods of claims being made. However, over recent years there have been increasing calls for the law to change. It is difficult to justify giving public bodies immunity simply based on the fact that without it they would have too many claims made against them. Surely the point of holding anyone financially accountable for causing harm is to encourage them to act with more care. This point was highlighted in the Supreme Court case of Commissioner of the Police for the Metropolis v DSD and another in 2017. Here, the police were severely criticised for using public policy grounds as a means of getting blanket immunity for a badly mishandled investigation. The case involved dozens of women being drugged and attacked by the “black cab serial rapist”, Danny Worboys, but resulted in only 2 victims successfully obtaining compensation.
The approach today – the Robinson case
In the case of Robinson v Chief Constable of West Yorkshire (2018), the Supreme Court clarified the law on when the police can be sued for negligence. To a degree, the courts may be “opening the floodgates” on potential claims against the police and other public bodies. In the Robinson case, an elderly lady was mistakenly knocked to the ground by the police during an attempted arrest of a drug dealer. The police were held to have acted negligently. It was also decided that the lady’s injury was a reasonably foreseeable consequence of the police’s actions. Despite this, the initial trial judge did not impose a duty of care based on public policy grounds.
The judge’s decision is not surprising given the traditional reluctance of the courts to impose a duty of care on the police in all but the most exceptional circumstances. The police, along with other public bodies, have been treated as special cases since Caparo and could often avoid liability on public policy grounds. On appeal, the Court of Appeal also decided not to impose a duty of care in the circumstances. It was only when the case was appealed to the Supreme Court and the fundamental principles used to decide when a public policy exception would apply was re-examined that Ms Robinson won her case. The existing law that limits actions on public policy grounds remains unchanged, but the Supreme Court has indicated that how the principle has been applied since Caparo has been wrong. Because of the misunderstanding of the law on public policy exemptions, the Supreme Court made some key points to help clarify the law:
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The police (or any other public body for that matter) are liable for their own acts of negligence.
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Where harm has been caused by the actions of others, the courts have traditionally tended not to impose a duty of care. The classic example is the failure of the police to protect a victim from harm caused by a criminal.
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Going forward, the distinction between harm caused by a third party and that caused by a positive act or an omission of the police will be fundamental to deciding if the public policy exemption applies.
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In cases where harm is caused by a third party and the police have failed to act (known as an omission to act), there will generally not be a duty of care imposed.
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Where harm is caused by a third party and the police have acted (negligently), then a duty of care will be imposed on the police.
In Robinson, the Court considered that there was a positive act by the police so a duty was imposed. The act of arresting someone was a positive act. Where an arrest is negligently performed, the police are liable not only for any injury caused to the person being arrested, but also for any injury that the person who is being arrested causes to another. The case does not change the law, but clarifies the circumstances when the police can limit liability on public policy grounds.
It can also be noted that the principles developed in the case could be applied in future cases to other public bodies. Where a positive act can be identified there will no longer be a blanket protection preventing a duty of care from being imposed on any public body.