736 Robinson V Chief Constable of West Yorkshire Police

736
Robinson v West Yorkshire Chief Constable (SC(E))

(SC(E)) [2018] AC
Supreme Court A
Robinson v Chief Constable of West Yorkshire Police

[2018] UKSC 4
2017 July 12; Baroness Hale of Richmond PSC, Lord Mance DPSC,
2018 Feb 8 Lord Reed, Lord Hughes, Lord Hodge JJSC B
Negligence Duty of care Police Police o–cers causing injury to passer-by

while attempting to arrest suspect on street in town centre Whether duty of
care owed to passers-by Whether police immune from claims in negligence for
injuries caused in course of performing core duties Whether police liable to
claimant in negligence
C
Two police o–cers attempted to arrest a suspected drug dealer on a weekday
afternoon in a shopping street in a town centre. A struggle took place, during which
the three men knocked into the claimant, a relatively frail woman aged 76, who was
passing by and they all fell to the ground with the claimant underneath. The
claimant, having su›ered injuries as a result, brought a claim against the chief
constable, seeking damages for personal injuries on the grounds of negligence by the
two police o–cers. The judge held that the police o–cers had acted negligently since
D
there was a foreseeable risk that passers-by such as the claimant would be injured,
and they had failed to have regard to the safety of members of the public in the
vicinity, but dismissed the claim on the grounds that the police had immunity against
claims in negligence. The Court of Appeal dismissed the claimants appeal and held
that no duty of care was owed by the police and that, even if the o–cers had owed the
claimant such a duty, on the facts of the case they had not acted in breach of it.
On the claimants appeal
Held, (1) (Lord Hughes JSC dubitante) that the police generally owed a duty of E
care in accordance with the ordinary principles of the law of negligence unless statute
or the common law provided otherwise, and there was no general rule that they were
not under such a duty of care when discharging their functions of preventing and
investigating crime; that, applying those principles, the police might be under a duty
of care to protect an individual from a danger of injury which they themselves had
created, but, in the absence of circumstances such as an assumption of responsibility,
they were not normally under a such duty where they had not created the danger of F
injury, including injury caused by the acts of third parties (post, paras 68, 70, 82, 95,
97).
Caparo Industries plc v Dickman [1990] 2 AC 605, HL(E) explained.
(2) Allowing the appeal, that, since the facts of the present case were concerned
with a positive act by the police and not an omission, and since there was a
reasonably foreseeable risk of injury if an arrest of a suspect were attempted in a busy
shopping street in a town centre at a time when pedestrians, especially physically G
vulnerable ones such as the claimant, might be knocked into and injured in the course
of the suspect attempting to escape, the police o–cers had owed a duty of care
towards pedestrians, including the claimant, in the immediate vicinity when the
arrest had been attempted (post, paras 72—74, 82, 97, 122).
Hill v Chief Constable of West Yorkshire [1989] AC 53, HL(E), Stovin v Wise
[1996] AC 923, HL(E) and Michael v Chief Constable of South Wales Police (Refuge
intervening) [2015] AC 1732, SC(E) considered. H
(3) That the chain of events which had resulted in the claimant being injured had
been initiated by the attempt to arrest the suspect and that chain of causation had not
been interrupted by the suspects voluntary decision to resist arrest, which had
resulted in his knocking into the claimant; that the act of the suspect was the very act
which the police were under a duty to guard against; that, accordingly, the claimant
' 2018 The Incorporated Council of Law Reporting for England and Wales
737
[2018] AC Robinson v West Yorkshire Chief Constable (SC(E))
(SC(E))
A had been injured as a result of being exposed to the very danger from which the police
o–cers had a duty to protect her; that, on the evidence, the judge had been entitled to
nd that there had been negligence on the part of the police and those ndings should
be restored; and that, therefore, the defendant was liable to the claimant, for damages
to be assessed (post, paras 78, 79—81, 82, 97, 123, 124).
Per Lord Mance DPSC. It would be unrealistic to suggest that, when recognising
and developing an established category of the duty of care, the courts are not
B inuenced by policy considerations. Although the courts are not a Law Commission,
in recognising the existence of any generalised duty in particular circumstances they
are making policy choices in which considerations such as proximity and fairness,
justice and reasonableness must inhere (post, para 84).
Per Lord Hughes JSC. Whilst there remains a duty of care imposed on police
o–cers not by positive action to occasion physical harm or damage to property
which ought reasonably to be avoided, there is no duty of care towards victims,
C witnesses or suspects in the manner of the investigation of o›ences or the prevention
of crime, or to protect individuals from harm caused by the criminal acts of third
parties. Where there is a duty of care, whether negligence is proved depends not on
whether, with hindsight, the decision the police took was wrong, but on whether in
all the circumstances it was reasonable (post, paras 120, 121).
Decision of the Court of Appeal [2014] EWCA Civ 15; [2014] PIQR P14
reversed.
D
The following cases are referred to in the judgments:
Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310; [1991] 3 WLR
1057; [1991] 4 All ER 907, HL(E)
Anns v Merton London Borough Council [1978] AC 728; [1977] 2 WLR 1024;
[1977] 2 All ER 492, HL(E)
Ashley v Chief Constable of Sussex Police (Sherwood intervening) [2008] UKHL 25;
E [2008] AC 962; [2008] 2 WLR 975; [2007] 3 All ER 573, HL(E)
Attorney General of the British Virgin Islands v Hartwell [2004] UKPC 12; [2004]
1 WLR 1273, PC
Barrett v Eneld London Borough Council [2001] 2 AC 550; [1999] 3 WLR 79;
[1999] 3 All ER 193, HL(E)
Brooks v Comr of Police of the Metropolis [2005] UKHL 24; [2005] 1 WLR 1495;
[2005] 2 All ER 489, HL(E)
F Calveley v Chief Constable of the Merseyside Police [1989] AC 1228; [1989] 2 WLR
624; [1989] 1 All ER 1025, HL(E)
Caparo Industries plc v Dickman [1990] 2 AC 605; [1990] 2 WLR 358; [1990] 1 All
ER 568, HL(E)
Costello v Chief Constable of Northumbria [1999] ICR 752; [1999] 1 All ER 550, CA
Desmond v Chief Constable of Nottinghamshire Police [2011] EWCA Civ 3; [2011]
PTSR 1369, CA
G Donoghue v Stevenson [1932] AC 562; 1932 SC (HL) 31, HL(Sc)
Dorset Yacht Co Ltd v Home O–ce [1970] AC 1004; [1970] 2 WLR 1140; [1970]
2 All ER 294, HL(E)
East Su›olk Rivers Catchment Board v Kent [1941] AC 74; [1940] 4 All ER 527,
HL(E)
Elguzouli-Daf v Comr of Police of the Metropolis [1995] QB 335; [1995] 2 WLR
173; [1995] 1 All ER 833, CA
H Entick v Carrington (1765) 2 Wils KB 275
Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455; [1998] 3 WLR
1509; [1999] ICR 216; [1999] 1 All ER 1, HL(E)
Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430, HL(I)
Glasbrook Bros Ltd v Glamorgan County Council [1925] AC 270, HL(E)
Goldman v Hargrave [1967] 1 AC 645; [1966] 3 WLR 513; [1966] 2 All ER 989, PC
738
(SC(E)) [2018] AC
Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15; [2004] A

1 WLR 1057; [2004] 2 All ER 326, HL(E)
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; [1963] 3 WLR 101;
[1963] 2 All ER 575, HL(E)
Hill v Chief Constable of West Yorkshire [1989] AC 53; [1988] 2 WLR 1049; [1988]
2 All ER 238, HL(E)
Informer, An v A Chief Constable [2012] EWCA Civ 197; [2013] QB 579; [2013]
2 WLR 694; [2012] 3 All ER 601, CA B
Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349; [1998] 3 WLR 1095;
[1998] 4 All ER 513, HL(E)
Knightley v Johns [1982] 1 WLR 349; [1982] 1 All ER 851, CA
McDonnell v Comr of Police of the Metropolis [2015] EWCA Civ 573, CA
McFarlane v Tayside Health Board [2000] 2 AC 59; [1999] 3 WLR 1301; [1999]
4 All ER 961; 2000 (SC) HL 1, HL(Sc)
McLoughlin v Jones [2001] EWCA Civ 1743; [2002] QB 1312; [2002] 2 WLR 1279, C
CA
Marc Rich & Co AG v Bishop Rock Marine Co Ltd (The Nicholas H) [1994] 1 WLR
1071; [1994] 3 All ER 686, CA; [1996] AC 211; [1995] 3 WLR 227; [1995] 3 All
ER 307, HL(E)
Marshall v Osmond [1983] QB 1034; [1983] 3 WLR 13; [1983] 2 All ER 225, CA
Mersey Docks and Harbour Board v Gibbs (1866) LR 1 HL 93, HL(E)
Michael v Chief Constable of South Wales Police (Refuge intervening) [2015] UKSC D
2; [2015] AC 1732; [2015] 2 WLR 343; [2015] 2 All ER 635, SC(E)
Minio-Paluello v Comr of Police of the Metropolis [2011] EWHC 3411 (QB)
Mitchell v Glasgow City Council [2009] UKHL 11; [2009] AC 874; [2009] 2 WLR
481; [2009] PTSR 778; [2009] 3 All ER 205; 2009 SC (HL) 21, HL(Sc)
Murphy v Brentwood District Council [1991] 1 AC 398; [1990] 3 WLR 414; [1990]
2 All ER 908, HL(E)
Perrett v Collins [1998] 2 Lloyds Rep 255; [1999] PNLR 77, CA E
Phelps v Hillingdon London Borough Council [2001] 2 AC 619; [2000] 3 WLR 776;
[2000] 4 All ER 504, HL(E)
R v Comr of Police of the Metropolis, Ex p Blackburn [1968] 2 QB 118; [1968]
2 WLR 893; [1968] 1 All ER 763, CA
R v Dytham [1979] QB 722; [1979] 3 WLR 467; [1979] 3 All ER 641, CA
Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242; [1985] 2 All ER
985 F
SXH v Crown Prosecution Service (United Nations High Comr for Refugees
intervening) [2017] UKSC 30; [2017] 1 WLR 1401; [2018] 1 All ER 267, SC(E)
Smith v Chief Constable of Sussex Police (Secretary of State for the Home
Department intervening) [2008] UKHL 50; [2009] AC 225; [2008] 3 WLR 593;
[2008] 3 All ER 977, HL(E)
Smith v Littlewoods Organisation Ltd [1987] AC 241; [1987] 2 WLR 480; [1987]
1 All ER 710; 1987 SC (HL) 37, HL(Sc)
G
Smith v Ministry of Defence (JUSTICE intervening) [2013] UKSC 41; [2014] AC 52;
[2013] 3 WLR 69; [2013] 4 All ER 794, SC(E)
Stovin v Wise [1996] AC 923; [1996] 3 WLR 388; [1996] 3 All ER 801, HL(E)
Thomas Graham & Co Ltd v Church of Scotland General Trustees 1982 SLT (Sh Ct)
26
Van Colle v Chief Constable of the Hertfordshire Police (Secretary of State for the
Home Department intervening) [2008] UKHL 50; [2009] AC 225; [2008] 3 WLR
H
593; [2008] 3 All ER 977, HL(E)
The following additional case was cited in argument:

Capital & Counties plc v Hampshire County Council [1997] QB 1004; [1997]
3 WLR 331; [1997] 2 All ER 865, CA
739
(SC(E))
Argument
A APPEAL from the Court of Appeal

By claim dated November 2011 the claimant, Elizabeth Robinson, sought
damages against the defendant, the Chief Constable of West Yorkshire Police,
for personal injuries sustained on 29 July 2008 when she had been a passer-by
at Kirkgate, Hudderseld, and two police o–cers in plain clothes, Detective
Sergeant Willan and Police Constable Dhurmea, had knocked her over while
B attempting to arrest a suspected drug dealer. The claimant alleged that the
two o–cers owed her a duty of care and that the accident and her injuries had
been caused by their negligence. On 16 May 2013 Mr Recorder Pimm, sitting
at Hudderseld County Court, dismissed the claim.
By an appellants notice the claimant appealed. On 5 February 2014 the
Court of Appeal (Hallett, Sullivan LJJ and Arnold J) [2015] EWCA Civ 15;
[2014] PIQR P14 dismissed the appeal.
C On 3 August 2016 the Supreme Court (Baroness Hale of Richmond DPSC,
Lord Reed and Lord Toulson JJSC) granted the claimant permission to
appeal, pursuant to which she appealed. The main issues on the appeal were
whether the Court of Appeal had erred in holding that the claimant had not
established that a duty of care in negligence was owed to her by the police
o–cers, and whether the police had immunity from claims when in the course
D of their core duties they negligently caused injury to passers-by.
The facts are stated in the judgment of Lord Reed JSC, post, paras 4—7.
Nicholas Bowen QC, David Lemer and Duncan Fairgrieve (instructed by

Grieves Solicitors, Hudderseld) for the claimant.
The orthodox principles of tort law recognise that an individual owes a
duty of care not to cause to others physical injury which is a reasonably
E
foreseeable consequence of his positive actions. That duty should apply
equally to public bodies. Police o–cers come within the scope of that duty,
and they owe a duty of care at common law to take reasonable steps to
ensure that during the arrest of an individual suspected of a criminal o›ence,
foreseeable physical injury is not caused by the positive acts of the police to
an innocent bystander or a passer-by who is caught up in the immediacy of
F the arrest.
In the present case the police o–cers reached a decision to act positively
and embarked upon an arrest in the middle of a busy high street, plainly
constituting a course of action which it could reasonably be foreseen might
cause harm to others. The general rule that protects the police from suit in
negligence applies only when it is accused of failing to protect life, limb or
G property from third party damage. That rule protects the police from
liability for pure omission and does not apply to the facts of this case because
it involves negligent positive acts and there was no novus actus interveniens.
[Reference was made to Michael v Chief Constable of South Wales Police
(Refuge intervening) [2015] AC 1732; Perrett v Collins [1999] PNLR 77;
Caparo Industries plc v Dickman [1990] 2 AC 605; Capital & Counties plc v
Hampshire County Council [1997] QB 1004; Van Colle v Chief Constable of
H the Hertfordshire Police (Secretary of State for the Home Department
intervening) [2009] AC 225; Hill v Chief Constable of West Yorkshire [1989]
AC 53 and Rigby v Chief Constable of Northamptonshire [1985] 1 WLR
1242.]
The Court of Appeal erred in overturning the recorders decision.
740
(SC(E)) [2018] AC
Argument
Jeremy Johnson QC and Ian Skelt (instructed by Head of West Yorkshire A

Police Legal Services, Wakeeld) for the defendant.
The claimant has a remedy against the arrestee and under the Criminal
Injuries Compensation Scheme, but she does not have a remedy against the
police in negligence. The police were discharging a core public function of
preventing and investigating crime. Arresting those suspected of committing
an o›ence is at the heart of the duty of the police. The rule is that in doing so it B
does not have a duty of care to the general public. In so far as it was alleged
that the police breached a duty of care in the claimants case, it was by
omissions and not by positive actions. The direct cause of the claimants
injuries was the criminal acts of the arrestee. The police had no duty to
prevent injury by the criminal acts of a third party and the police took
reasonable care.
The rationale of the decided cases depended on the function of the duties C
being undertaken rather than the manner in which they were being
undertaken.
[Reference was made to Hill v Chief Constable of West Yorkshire [1989]
AC 53; Elguzouli-Daf v Comr of Police of the Metropolis [1995] QB 335;
Brooks v Comr of Police of the Metropolis [2005] 1 WLR 1495; Van Colle v
Chief Constable of the Hertfordshire Police (Secretary of State for the Home D
Department intervening) [2009] AC 225; Desmond v Chief Constable of
Nottinghamshire Police [2011] PTSR 1369; Michael v Chief Constable of
South Wales Police (Refuge intervening) [2015] AC 1732; Attorney General
of the British Virgin Islands v Hartwell [2004] 1 WLR 1273 and Perrett v
Collins [1999] PNLR 77.]
The common law does not generally impose liability for the conduct of a
third party. There was no special relationship between the police and the E
arrestee and there was no ability on the part of the police to control him.
The police did not create a situation which was exploited. Foreseeability is
not in itself a su–cient test. The direct cause of the harm to the claimant was
not the fault of the police.
The Court of Appeal made clear that the recorders nding that there had
been a breach of duty was erroneous, and was right to nd that the recorder F
had been wrong in his assessment of the evidence.
Bowen QC replied.
The court took time for consideration.
8 February 2018. The following judgments were handed down. G
LORD REED JSC (with whom BARONESS HALE OF RICHMOND PSC

and LORD HODGE JSC agreed)
1 On a Tuesday afternoon in July 2008 Mrs Elizabeth Robinson,
described by the recorder as a relatively frail lady then aged 76, was walking
along Kirkgate, a shopping street in the centre of Hudderseld, when she
H
was knocked over by a group of men who were struggling with one another.
Two of the men were sturdily built police o–cers, and the third was a
suspected drug dealer whom they were attempting to arrest. As they
struggled, the men knocked into Mrs Robinson and they all fell to the
ground, with Mrs Robinson underneath. She su›ered injuries as a result.
741
(SC(E))
Lord Reed JSC
A 2 The principal question which has to be decided in this appeal is

whether the o–cers owed a duty of care to Mrs Robinson. The other
important question is whether, if they did, they were in breach of that duty.
Mr Recorder Pimm held that the o–cers had been negligent, but that police
o–cers engaged in the apprehension of criminals were immune from suit.
The Court of Appeal held that no duty of care was owed, and that, even if the
B o–cers had owed Mrs Robinson such a duty, they had not acted in breach of
it [2014] PIQR P14.
3 As will appear, the simple facts of this case have given rise to
proceedings raising issues of general importance. Most of those issues can
be decided by applying long-established principles of the law of negligence.
The fact that the issues have reached this court reects the extent to which
those principles have been eroded in recent times by uncertainty and
C
confusion.
The facts
4 The events leading to Mrs Robinsons accident began when DS Neil
Willan spotted Mr Ashley Williams apparently dealing drugs in a park in the
centre of Hudderseld. He did not attempt to arrest Williams immediately,
D
as Williams was young and physically t, and Willan thought that he was
unlikely to be able to arrest him without his running away. He called for
backup, and DC Ian Green and DS Damian Roebuck then made their way to
join him.
5 Williams went to a bookmakers on Kirkgate, and Willan followed
him inside. He decided not to attempt an arrest inside the shop, as there
E were people there whom he recognised, and he was concerned that
attempting an arrest would endanger both his own safety and that of the
customers and sta›. Williams then left the shop and stood outside it. Green
and Roebuck then arrived, and another o–cer, PC Dhurmea, arrived soon
afterwards. Like Willan, they were in plain clothes.
6 Willan and Roebuck formed a plan to arrest Williams while he was
F standing outside the bookmakers. The plan involved Willan and Dhurmea
approaching Williams from one direction, taking hold of him and e›ecting
the arrest, while Roebuck and Green were positioned in the opposite
direction, to prevent his escape and assist once Willan and Dhurmea had
taken hold of him. Willan and Dhurmea positioned themselves up the street
from the bookmakers, while Green and Roebuck took up a position some
G
distance down the street. Kirkgate was moderately busy at the time with
pedestrians and tra–c. Mrs Robinson was one of a number of pedestrians
walking along the pavement. She passed Willan and Dhurmea, and then
Williams, very shortly after two other pedestrians.
7 Almost immediately after she passed Williams, and when she was
within a yard of him, Willan and Dhurmea approached him. Mrs Robinson
was then in their line of sight. The o–cers took hold of Williams and
H attempted to arrest him. Williams resisted arrest. As the men tussled, they
moved towards Mrs Robinson and collided with her. The initial contact was
between her and Williams, who backed into her. She fell over, and the men
fell on top of her. Roebuck and Green arrived three seconds later and
assisted in arresting Williams.
742
(SC(E)) [2018] AC
Lord Reed JSC
The proceedings before the recorder A

8 Mrs Robinson issued proceedings for damages for personal injury, on
the basis rst of the negligence of the o–cers, and secondly assault and
trespass to the person occasioned by DS Willan. The latter aspect of the
claim is no longer in issue. Following a hearing on liability, the recorder
dismissed the claim.
9 In relation to the facts, the recorder relied on CCTV footage of the B
incident, together with the evidence of DS Willan, DS Roebuck and DC
Green concerning the planning of the arrest. He accepted Willans evidence
that the o–cers had identied the risk that Williams would try to run away,
and regarded it as signicant. Willan also said that he was aware of the
potential for harm to members of the public if Williams tried to escape. His
evidence was that in any situation it was necessary to consider the risk to
C
those in the vicinity. He said that if it had appeared to him that someone was
in harms way, he would have walked past Williams without e›ecting the
arrest. The recorder noted that that was in accordance with the risk
assessment guidance provided to police o–cers in relation to arrests in drugs
cases, to which he had been referred in the evidence. Willan said that he had
not been aware of Mrs Robinsons presence when he attempted to arrest
Williams. D
10 Willan also gave evidence that there was some urgency in e›ecting
the arrest. He had seen Williams taking the drugs from a bag secured around
his neck. It was important to arrest him while he still had drugs in his
possession. Without the drugs, there was unlikely to be su–cient evidence
for a successful prosecution.
11 DS Roebuck said that it had taken him and DC Green about three E
seconds to get from the place where they had taken up position prior to the
attempted arrest to the scene where the other three men were on top of
Mrs Robinson. He said that suspects like Williams could have recognised
them as police o–cers if they had been any closer. The recorder did not
accept that evidence, which was unsupported by any other evidence. As far
as appeared from the evidence, Roebuck and Green would, he found, just
have been two men walking along the street. F
12 In the light of the evidence, the recorder found that the decision to
arrest Williams at the time and place selected by the o–cers involved a
foreseeable risk that Mrs Robinson would be injured. She was in very close
proximity to Williams at that moment, she was an elderly lady, and there
was a signicant and foreseeable risk that he would try to escape.
13 In the view of the recorder, the o–cers had acted negligently. First, G
Willan accepted that he ought to have been taking care for the safety of
members of the public in the vicinity. Although Mrs Robinson had just
walked past Williams and was within a yard of him, Willan did not notice
her. That was prima facie in breach of his duty of care. Secondly, in view of
the known risk that Williams would try to escape, the o–cers could have
waited and selected a safer opportunity to e›ect the arrest. Thirdly, there
H
was a clear need for all four o–cers to be present if the arrest was to be
carried out safely with pedestrians passing. Roebuck and Green had
however been too far away to assist their colleagues until several seconds
had passed. The risk could have been minimised if they had been closer at
the time when the arrest was attempted.
743
(SC(E))
Lord Reed JSC
A 14 The recorder held, however, that the decision in Hill v Chief

Constable of West Yorkshire [1989] AC 53 had conferred on the police an
immunity against claims in negligence. In the light of the decision of the
Court of Appeal in Desmond v Chief Constable of Nottinghamshire Police
[2011] PTSR 1369, that immunity was not conned to cases of omission. It
therefore applied in the present case.
B
The proceedings in the Court of Appeal
15 In the Court of Appeal [2014] PIQR P14, para 40, Hallett LJ
considered that the Caparo test [Caparo Industries plc v Dickman [1990]
2 AC 605, 617—618] applies to all claims in the modern law of negligence.
In consequence, The court will only impose a duty where it considers it
C right to do so on the facts. The general principle was that
most claims against the police in negligence for their acts or omissions
in the course of investigating and suppressing crime and apprehending
o›enders will fail the third stage of the Caparo test: para 46.
That is to say, It will not be fair, just and reasonable to impose a duty:
para 46. That is because the courts have concluded that the interests of the
D
public will not be best served by imposing a duty [on] to individuals:
para 46. The answer to counsels rhetorical question, what would the public
think if the police, in the process of arresting criminals, could injure innocent
members of the public with impunity, was that provided the police act
within reason, the public would prefer to see them doing their job and taking
drug dealers o› the street: para 47. One might observe that if the police are
E not under a duty of care, then it is irrelevant to the issue whether they act
within reason or not. On the other hand, if they act with reasonable care,
then they will not be in breach of a duty of care, even if an innocent member
of the public is injured.
16 Hallett LJ accepted that the authorities suggested that there might be
a number of possible exceptions to the general principle: cases of outrageous
F negligence, cases which did not relate to core functions, and cases where
police o–cers had assumed responsibility for a claimant. The present case
did not fall into any of those categories. It was a paradigm example of why
the courts are loath to impose a duty towards individual members of the
public on the police engaged in their core functions: para 51.
17 Hallett LJ added that, even if counsel for Mrs Robinson had been
correct in her argument that there was no immunity from liability where
G
police o–cers caused direct physical harm to members of the public, it was
in any event clear that Williams was responsible for the harm. This was
therefore a claim based on the o–cers failure to prevent Williams from
harming Mrs Robinson: in the language used in other cases, it concerned an
omission, rather than a positive act. Such a claim fell at the rst hurdle: it
was not fair, just or reasonable to impose liability on those facts.
H 18 Furthermore, Hallett LJ considered that there was no proximity
between Mrs Robinson and the police o–cers, notwithstanding that she had
been injured when they fell on top of her. It was not enough to nd that
there was a reasonably foreseeable risk of her being physically injured in the
course of carrying out the arrest.
744
(SC(E)) [2018] AC
Lord Reed JSC
19 Hallett LJ also added that, had it been necessary, she would have felt A
obliged to overturn the recorders nding of negligence. In that regard, she
criticised him for acting as if he were an expert in the arrest and detention of
suspects. In her own view, DS Willan could not a›ord to wait. He was
bound to attempt the arrest or risk losing the suspect and the evidence. The
delay of three seconds in the other two o–cers reaching the scene was hardly
worthy of criticism. Arnold J delivered a concurring judgment, and B
Sullivan LJ agreed with Hallett LJ.
The issues
20 The issues arising from the judgments below and the parties
submissions can be summarised as follows:
(1) Does the existence of a duty of care always depend on the application
C
of the Caparo test to the facts of the particular case?
(2) Is there a general rule that the police are not under any duty of care
when discharging their function of investigating and preventing crime? Or
are the police generally under a duty of care to avoid causing reasonably
foreseeable personal injuries, when such a duty would arise in accordance
with ordinary principles of the law of negligence? If the latter is the position,
does the law distinguish between acts and omissions: in particular, between D
causing injury, and protecting individuals from injury caused by the conduct
of others?
(3) If the latter is the position, is this an omissions case, or a case of a
positive act?
(4) Did the police o–cers owe a duty of care to Mrs Robinson?
(5) If so, was the Court of Appeal entitled to overturn the recorders
E
nding that the o–cers failed in that duty?
(6) If there was a breach of a duty of care owed to Mrs Robinson, were her
injuries caused by that breach?
(1) Caparo
21 The proposition that there is a Caparo test which applies to all
claims in the modern law of negligence, and that in consequence the court F
will only impose a duty of care where it considers it fair, just and reasonable
to do so on the particular facts, is mistaken. As Lord Toulson JSC pointed
out in his landmark judgment in Michael v Chief Constable of South Wales
Police (Refuge intervening) [2015] AC 1732, para 106, that understanding
of the case mistakes the whole point of the Caparo case, which was to
repudiate the idea that there is a single test which can be applied in all cases G
in order to determine whether a duty of care exists, and instead to adopt an
approach based, in the manner characteristic of the common law, on
precedent, and on the development of the law incrementally and by analogy
with established authorities.
22 The Caparo case was decided in the aftermath of Lord Wilberforces
attempt in Anns v Merton London Borough Council [1978] AC 728, 751—752
H
to lay down an approach which could be applied in all situations in order to
determine the existence of a duty of care. That approach had two stages: rst,
it was necessary to decide whether there was a prima facie duty of care, based
on the foreseeability of harm, and secondly, in order to place limits on the
breadth of the rst stage, it was necessary to consider whether there were
745
(SC(E))
Lord Reed JSC
A reasons of public policy for excluding or restricting any such prima facie duty.
That approach had major implications for public authorities, as they have a
multitude of functions designed to protect members of the public from harm
of one kind or another, with the consequence that the rst stage inquiry was
readily satised, and the only limit to liability became public policy.
23 The Anns case led to a period during which the courts struggled to
B
contain liability, particularly for economic loss unassociated with physical
damage or personal injury, and for the acts and omissions of public
authorities. Commenting extra-judicially during that period, Lord Oliver of
Aylmerton said that what has been seen as a principle of prima facie liability
has been prayed in aid in subsequent cases to justify claims for damages
which have become progressively more divorced from common sense and as
placing on the defendant a burden, sometimes virtually insurmountable, of
C showing some good reason in policy why he should not be held liable:
Judicial Legislation: Retreat from Anns, Third Sultan Azlan Shah Law
Lecture (1988). It was in the context of the retreat from Anns that emphasis
was placed in a number of cases on the concept of proximity, and on the
idea that it must be fair to impose a duty of care on the defendant.
24 In the Caparo case [1990] 2 AC 605, Lord Bridge of Harwich noted
D that, since the Anns case, a series of decisions of the Privy Council and the
House of Lords, notably in judgments and speeches delivered by Lord Keith
of Kinkel (including his speech in Hill v Chief Constable of West Yorkshire
[1989] AC 53), had emphasised the inability of any single general principle
to provide a practical test which can be applied to every situation to
determine whether a duty of care is owed and, if so, what is its scope: p 617.
It is ironic that the immediately following passage in Lord Bridges speech
E has been treated as laying down such a test, despite, as Lord Toulson JSC
remarked in Michaels case, the pains which he took, at pp 617—618, to
make clear that it was not intended to be any such thing:
What emerges [from the post-Anns decisions] is that, in addition to the
foreseeability of damage, necessary ingredients in any situation giving rise
to a duty of care are that there should exist between the party owing the
F duty and the party to whom it is owed a relationship characterised by the
law as one of proximity or neighbourhood and that the situation should
be one in which the court considers it fair, just and reasonable that the law
should impose a duty of a given scope upon the one party for the benet of
the other. But it is implicit in the passages referred to that the concepts of
proximity and fairness embodied in these additional ingredients are not
G susceptible of any such precise denition as would be necessary to give
them utility as practical tests, but amount in e›ect to little more than
convenient labels to attach to the features of di›erent specic situations
which, on a detailed examination of all the circumstances, the law
recognises pragmatically as giving rise to a duty of care of a given scope.
(Emphasis added.)
H 25 Lord Bridge, at p 618, immediately went on to adopt an incremental
approach, based on the use of established authorities to provide guidance as
to how novel questions should be decided:
I think the law has now moved in the direction of attaching greater
signicance to the more traditional categorisation of distinct and
746
(SC(E)) [2018] AC
Lord Reed JSC
recognisable situations as guides to the existence, the scope and the limits A
of the varied duties of care which the law imposes. We must now, I think,
recognise the wisdom of the words of Brennan J in the High Court of
Australia in Sutherland Shire Council v Heyman (1985) 60 ALR 1,
43—44, where he said: It is preferable, in my view, that the law should
develop novel categories of negligence incrementally and by analogy with
established categories . . . B
It was that approach, and not a supposed tripartite test, which Lord Bridge
then proceeded to apply to the facts before him.
26 Applying the approach adopted in the Caparo case, there are many
situations in which it has been clearly established that a duty of care is or is
not owed: for example, by motorists to other road users, by manufacturers
to consumers, by employers to their employees, and by doctors to their C
patients. As Lord Browne-Wilkinson explained in Barrett v Eneld London
Borough Council [2001] 2 AC 550, 559—560:
Once the decision is taken that, say, company auditors though liable
to shareholders for negligent auditing are not liable to those proposing to
invest in the company . . . that decision will apply to all future cases of the
D
same kind.
Where the existence or non-existence of a duty of care has been established,
a consideration of justice and reasonableness forms part of the basis on
which the law has arrived at the relevant principles. It is therefore
unnecessary and inappropriate to reconsider whether the existence of the
duty is fair, just and reasonable (subject to the possibility that this court may E
be invited to depart from an established line of authority). Nor, a fortiori,
can justice and reasonableness constitute a basis for discarding established
principles and deciding each case according to what the court may regard as
its broader merits. Such an approach would be a recipe for inconsistency
and uncertainty, as Hobhouse LJ recognised in Perrett v Collins [1999]
PNLR 77, 90—91: F
It is a truism to say that any case must be decided taking into account
the circumstances of the case, but where those circumstances comply with
established categories of liability, a defendant should not be allowed to
seek to escape from liability by appealing to some vaguer concept of
justice or fairness; the law cannot be re-made for every case. Indeed, the
previous authorities have by necessary implication held that it is fair, just G
and reasonable that the plainti› should recover in the situations falling
within the principles they have applied.
27 It is normally only in a novel type of case, where established
principles do not provide an answer, that the courts need to go beyond those
principles in order to decide whether a duty of care should be recognised.
Following the Caparo case, the characteristic approach of the common law H
in such situations is to develop incrementally and by analogy with
established authority. The drawing of an analogy depends on identifying the
legally signicant features of the situations with which the earlier authorities
were concerned. The courts also have to exercise judgement when deciding
747
(SC(E))
Lord Reed JSC
A whether a duty of care should be recognised in a novel type of case. It is the

exercise of judgement in those circumstances that involves consideration of
what is fair, just and reasonable. As Lord Millett observed in McFarlane v
Tayside Health Board [2000] 2 AC 59, 108, the court is concerned to
maintain the coherence of the law and the avoidance of inappropriate
distinctions if injustice is to be avoided in other cases. But it is also engaged
B in a search for justice, and this demands that the dispute be resolved in a way
which is fair and reasonable and accords with ordinary notions of what is t
and proper.
28 In the present case, Hallett LJ cited the decision of this court in Smith
v Ministry of Defence (JUSTICE intervening) [2014] AC 52 as an example
of a decision in which there was a focus on the three ingredients mentioned
by Lord Bridge. That was however a case raising a novel legal issue, relating
C
to the provision of protective equipment to soldiers on active duty, and the
scope of combat immunity: it did not concern an established category of
liability. Hallett LJ also relied on a passage in the speech of Lord Steyn in
Marc Rich & Co AG v Bishop Rock Marine Co Ltd (The Nicholas H) [1996]
AC 211, 235, in which he remarked that the elements of foreseeability and
proximity as well as considerations of fairness, justice and reasonableness
D are relevant to all cases. That was a case concerned with the loss of a ship
and its cargo as a result of negligent advice, in which the reasoning was
essentially directed to considerations relevant to economic loss. As
Hobhouse LJ observed in Perrett v Collins [1999] PNLR 77, 92:
Marc Rich should not be regarded as an authority which has a
relevance to cases of personal injury or as adding any requirements that
E
an injured plainti› do more than bring his case within established
principles. If a plainti› is attempting to establish some novel principle of
liability, then the situation would be di›erent.
It was in any event made clear in Michaels case that the idea that the Caparo
case established a tripartite test is mistaken.
F 29 Properly understood, the Caparo case thus achieves a balance
between legal certainty and justice. In the ordinary run of cases, courts
consider what has been decided previously and follow the precedents (unless
it is necessary to consider whether the precedents should be departed from).
In cases where the question whether a duty of care arises has not previously
been decided, the courts will consider the closest analogies in the existing
law, with a view to maintaining the coherence of the law and the avoidance
G
of inappropriate distinctions. They will also weigh up the reasons for and
against imposing liability, in order to decide whether the existence of a duty
of care would be just and reasonable. In the present case, however, the court
is not required to consider an extension of the law of negligence. All that is
required is the application to particular circumstances of established
principles governing liability for personal injuries.
H 30 Addressing, then, the rst of the issues identied in para 20 above,
the existence of a duty of care does not depend on the application of a
Caparo test to the facts of the particular case. In the present case, it
depends on the application of established principles of the law of
negligence.
748
(SC(E)) [2018] AC
Lord Reed JSC
(2) The police A

(i) Public authorities in general
31 Before focusing on the position of the police in particular, it may be
helpful to consider the position of public authorities in general, as this is an
area of the law of negligence which went through a period of confusion
following the case of Anns, as explained in paras 22—23 above. That
confusion has not yet entirely dissipated, as courts continue to cite B
authorities from that period without always appreciating the extent to
which their reasoning has been superseded by the return to orthodoxy
achieved rst in Stovin v Wise [1996] AC 923 and then, more fully and
clearly, in Gorringe v Calderdale Metropolitan Borough Council [2004]
1 WLR 1057.
32 At common law, public authorities are generally subject to the same C
liabilities in tort as private individuals and bodies: see, for example, Entick v
Carrington (1765) 2 Wils KB 275 and Mersey Docks and Harbour Board v
Gibbs (1866) LR 1 HL 93. Dicey famously stated that every o–cial, from
the Prime Minister down to a constable or a collector of taxes, is under the
same responsibility for every act done without legal justication as any other
citizen: The Law of the Constitution, 3rd ed (1889), p 181. An important
exception at common law was the Crown, but that exception was addressed D
by the Crown Proceedings Act 1947, section 2.
33 Accordingly, if conduct would be tortious if committed by a private
person or body, it is generally equally tortious if committed by a public
authority: see, for example, Dorset Yacht Co Ltd v Home O–ce [1970] AC
1004, as explained in Gorringes case [2004] 1 WLR 1057, para 39. That
general principle is subject to the possibility that the common law or statute E
may provide otherwise, for example by authorising the conduct in question:
Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430. It follows
that public authorities are generally under a duty of care to avoid causing
actionable harm in situations where a duty of care would arise under
ordinary principles of the law of negligence, unless the law provides
otherwise.
34 On the other hand, public authorities, like private individuals and F
bodies, are generally under no duty of care to prevent the occurrence of
harm: as Lord Toulson JSC stated in Michaels case [2015] AC 1732,
para 97, the common law does not generally impose liability for pure
omissions. This omissions principle has been helpfully summarised by
Tofaris and Steel, Negligence Liability for Omissions and the Police
[2016] CLJ 128: G
In the tort of negligence, a person A is not under a duty to take care to
prevent harm occurring to person B through a source of danger not
created by A unless (i) A has assumed a responsibility to protect B from
that danger, (ii) A has done something which prevents another from
protecting B from that danger, (iii) A has a special level of control over
that source of danger, or (iv) As status creates an obligation to protect H
B from that danger.
35 As that summary makes clear, there are certain circumstances in
which public authorities, like private individuals and bodies, can come
under a duty of care to prevent the occurrence of harm: see, for example,
749
(SC(E))
Lord Reed JSC
A Barrett v Eneld London Borough Council [2001] 2 AC 550 and Phelps v

Hillingdon London Borough Council [2001] 2 AC 619, as explained in
Gorringes case [2004] 1 WLR 1057, paras 39—40. In the absence of such
circumstances, however, public authorities generally owe no duty of care
towards individuals to confer a benet upon them by protecting them from
harm, any more than would a private individual or body: see, for example,
B
Smith v Littlewoods Organisation Ltd [1987] AC 241, concerning a private
body, applied in Mitchell v Glasgow City Council [2009] AC 874,
concerning a public authority.
36 That is so, notwithstanding that a public authority may have
statutory powers or duties enabling or requiring it to prevent the harm in
question. A well known illustration of that principle is the decision of the
House of Lords in East Su›olk Rivers Catchment Board v Kent [1941] AC
C 74. The position is di›erent if, on its true construction, the statutory power
or duty is intended to give rise to a duty to individual members of the public
which is enforceable by means of a private right of action. If, however, the
statute does not create a private right of action, then it would be, to say the
least, unusual if the mere existence of the statutory duty [or, a fortiori, a
statutory power] could generate a common law duty of care: Gorringes
D case [2004] 1 WLR 1057, para 23.
37 A further point, closely related to the last, is that public authorities,
like private individuals and bodies, generally owe no duty of care towards
individuals to prevent them from being harmed by the conduct of a third
party: see, for example, Smith v Littlewoods Organisation Ltd [1987] AC
241 and Mitchell v Glasgow City Council [2009] AC 874. In Michaels case
[2015] AC 1732, para 97 Lord Toulson JSC explained the point in this way:
E
It is one thing to require a person who embarks on action which may
harm others to exercise care. It is another matter to hold a person liable in
damages for failing to prevent harm caused by someone else.
There are however circumstances where such a duty may be owed, as Tofaris
and Steele indicated in the passage quoted above. They include circumstances
F where the public authority has created a danger of harm which would not
otherwise have existed, or has assumed a responsibility for an individuals
safety on which the individual has relied. The rst type of situation is
illustrated by the Dorset Yacht case, and in relation to the police by the case of
Attorney General of the British Virgin Islands v Hartwell [2004] 1 WLR
1273, discussed below. The second type of situation is illustrated, in relation
G to the police, by the case of An Informer v A Chief Constable [2013] QB 579,
as explained in Michaels case [2015] AC 1732, para 69.
38 In the Anns case [1978] AC 728, however, it was decided that a local
authority owed a duty of care at common law, when exercising its power to
inspect building works, to protect the ultimate occupier of the building from
loss resulting from defects in its construction. The House of Lords thus held
a public authority liable at common law for a careless failure to confer a
H benet, by preventing harm caused by another persons conduct, in the
absence of any special circumstances such as an assumption of responsibility
towards the claimant. It added to the confusion by importing public law
concepts, and the American distinction between policy and operational
decisions, into questions concerning duties arising under the law of
750
(SC(E)) [2018] AC
Lord Reed JSC
obligations. Although the decision was overruled in Murphy v Brentwood A

District Council [1991] 1 AC 398 on a limited basis (relating to the
categorisation of the type of harm involved), its reasoning in relation to these
matters was not nally disapproved until Stovin v Wise [1996] AC 923.
39 The position was claried in Gorringe v Calderdale Metropolitan
Borough Council [2004] 1 WLR 1057, which made it clear that the principle
which had been applied in Stovin v Wise in relation to a statutory duty was B
also applicable to statutory powers. Lord Ho›mann (with whom Lord Scott
of Foscote, Lord Rodger of Earlsferry and Lord Brown of Eaton-under-
Heywood agreed) said that he found it di–cult to imagine a case in which a
common law duty could be founded simply on the failure, however
irrational, to provide some benet which a public authority had power (or a
public law duty) to provide: para 32. He was careful to distinguish that
situation from cases where a public authority did acts or entered into C
relationships or undertook responsibilities giving rise to a duty of care on an
orthodox common law foundation: para 38.
40 However, until the reasoning in the Anns case was repudiated, it was
not possible to justify a rejection of liability, where a prima facie duty of care
arose at the rst stage of the analysis from the foreseeability of harm, on the
basis that public bodies are not generally liable for failing to exercise their D
statutory powers or duties so as to confer the benet of protection from
harm. Instead, it was necessary to have recourse to public policy in order to
justify the rejection of liability at the second stage. That was accordingly the
approach adopted by the House of Lords and the Court of Appeal in a series
of judgments, including Hills case [1989] AC 53. The need to have recourse
to public policy for that purpose has been superseded by the return to
E
orthodoxy in Gorringes case. Since that case, a public authoritys
non-liability for the consequences of an omission can generally be justied
on the basis that the omissions principle is a general principle of the law of
negligence, and the law of negligence generally applies to public authorities
in the same way that it applies to private individuals and bodies.
41 Equally, concerns about public policy cannot in themselves override
a liability which would arise at common law for a positive act carried out in F
the course of performing a statutory function: the true question is whether,
properly construed, the statute excludes the liability which would otherwise
arise: see Gorringes case [2004] 1 WLR 1057, para 38, per Lord Ho›mann.
42 That is not to deny that what might be described as policy
considerations sometimes have a role to play in the law of negligence. As
explained earlier, where established principles do not provide a clear answer
G
to the question whether a duty of care should be recognised in a novel
situation, the court will have to consider whether its recognition would be
just and reasonable.
(ii) The police in particular

43 Turning to consider specically the position of the police, Lord
H
Toulson JSC explained in Michaels case [2015] AC 1732, paras 29—35 that
the police owe a duty to the public at large for the prevention of violence and
disorder. That public law duty has a number of legal consequences. For
example, the police cannot lawfully charge members of the public for
performing their duty (Glasbrook Bros Ltd v Glamorgan County Council
751
(SC(E))
Lord Reed JSC
A [1925] AC 270), and a police o–cer who wilfully fails to perform his duty
may be guilty of a criminal o›ence: R v Dytham [1979] QB 722. Some
members of the public may have standing to enforce the duty, for example in
proceedings for judicial review (R v Comr of Police of the Metropolis,
Ex p Blackburn [1968] 2 QB 118), but in doing so they are not enforcing a
duty owed to them as individuals.
B 44 In relation to the question whether, and in what circumstances, a
private law duty of care might be owed by the police to particular
individuals, Lord Toulson JSC discussed in Michaels case the case of Hill,
and in particular the speech of Lord Keith, with whom Lord Brandon of
Oakbrook, Lord Oliver and Lord Go› of Chieveley agreed. Since it is
apparent from the judgments below in the present proceedings, and from the
submissions to this court, that Lord Keiths reasoning continues to be
C misunderstood, it is necessary to consider it once more.
45 For the purposes of the present case, the most important aspect of
Lord Keiths speech in Hills case is that, in the words of Lord Toulson JSC
(Michaels case [2015] AC 1732, para 37), he recognised that the general
law of tort applies as much to the police as to anyone else. What Lord Keith
said [1989] AC 53, 59 was this:
D
There is no question that a police o–cer, like anyone else, may be liable
in tort to a person who is injured as a direct result of his acts or omissions.
So he may be liable in damages for assault, unlawful arrest, wrongful
imprisonment and malicious prosecution, and also for negligence.
(Emphasis added.)
The words like anyone else are important. They indicate that the police
E
are subject to liability for causing personal injury in accordance with the
general law of tort. That is as one would expect, given the general position
of public authorities as explained in paras 32—33 above.
46 Lord Keiths dictum is vouched by numerous authorities. Those
which he cited were Knightley v Johns [1982] 1 WLR 349, where a police
o–cer who attended the scene of a road accident carelessly created an
F unnecessary danger to the claimant, and Rigby v Chief Constable of
Northamptonshire [1985] 1 WLR 1242, where police o–cers attending a
siege at a gunsmiths shop, where a psychopathic intruder had armed himself
and was ring from the building, carelessly caused damage to the premises in
the course of an attempt to end the siege, by ring a CS gas canister into the
building in the absence of re-ghting equipment. That decision, cited with
G approval in Hills case and in later authorities, is inconsistent with any
supposed rule that the police owe no duty of care in respect of action taken
in the course of suppressing crime. Lord Keith also referred to the decision
in the Dorset Yacht case, where prison o–cers who brought young o›enders
on to an island and then left them unsupervised, when it was reasonably
foreseeable that they would attempt to escape, and in doing so cause damage
to property, were held to be in breach of a duty of care.
H
47 Other examples concerning the police include Attorney General of
the British Virgin Islands v Hartwell [2004] 1 WLR 1273, where police
authorities were held to have been negligent in entrusting a rearm to an
o–cer who was still on probation and had shown signs of mental instability,
and cases such as Frost v Chief Constable of South Yorkshire Police [1999]
752
(SC(E)) [2018] AC
Lord Reed JSC
2 AC 455, in which police forces, although not technically employers, have A

been treated as owing the same common law duty as employers to take
reasonable care for the safety of their o–cers. There are also numerous cases
concerned with road accidents involving police cars, such as Marshall v
Osmond [1983] QB 1034, where Donaldson MR observed that the duty
owed by a police driver to a suspected criminal whom he was pursuing was
the same duty as that owed to anyone else, namely to exercise such care and B
skill as is reasonable in the circumstances. One might also mention Alcock
v Chief Constable of South Yorkshire Police [1992] 1 AC 310, where the
House of Lords accepted, applying principles developed in cases concerning
private individuals and bodies, that a duty of care was owed by the police,
when they were responsible for crowd control at a football match, to
persons who su›ered psychiatric injuries as a result of deaths and injuries
sustained by members of the crowd, subject to those persons being C
su–ciently proximate in time and space to the incident, and to their having a
su–ciently close relationship to the dead and injured.
48 These cases are not anomalous exceptions to the general absence of a
duty of care, and cannot all be explained as falling within particular
categories of the kind listed by Hallett LJ in the present case: cases of
outrageous negligence, cases which did not relate to core functions, and D
cases where police o–cers had assumed responsibility for a claimant. The
cases of Rigby v Chief Constable of Northamptonshire and Marshall v
Osmond, for example, are plainly inconsistent with any supposed rule that
the police owe no duty of care when engaged in their core operational
activities, or that outrageous negligence or an assumption of responsibility
must be established. On the contrary, these cases are examples of the
E
application to the police of the ordinary common law duty of care to avoid
causing reasonably foreseeable injury to persons and reasonably foreseeable
damage to property.
49 There are also examples concerned with other torts, such as Ashley v
Chief Constable of Sussex Police (Sherwood intervening) [2008] AC 962,
where relatives of a suspected drug dealer who had been shot dead by a
police o–cer during a raid were held to have a cause of action for damages F
for battery (liability for negligence having been conceded), Minio-Paluello v
Comr of Police of the Metropolis [2011] EWHC 3411 (QB), where a
protestor who su›ered serious injuries when being pulled up from the
ground by a police o–cer with excessive force was found entitled to
damages for assault, and McDonnell v Comr of Police of the Metropolis
[2015] EWCA Civ 573, where a claim for damages by a suspected drug G
dealer for assault arising from the use of excessive force during his arrest
failed only on its facts.
50 On the other hand, as Lord Toulson JSC noted in Michaels case
[2015] AC 1732, para 37, Lord Keith held that the general duty of the police
to enforce the law did not carry with it a private law duty towards individual
members of the public. In particular, police o–cers investigating a series of
murders did not owe a duty to the murderers potential future victims to take H
reasonable care to apprehend him. That was again in accordance with the
general law of negligence. As explained earlier, the common law does not
normally impose liability for omissions, or more particularly for a failure to
prevent harm caused by the conduct of third parties. Public authorities are
753
(SC(E))
Lord Reed JSC
A not, therefore, generally under a duty of care to provide a benet to

individuals through the performance of their public duties, in the absence of
special circumstances such as an assumption of responsibility. This was
recognised by Lord Toulson JSC in Michaels case. As he explained, at
paras 115—116:
115. The refusal of the courts to impose a private law duty on the
B police to exercise reasonable care to safeguard victims or potential
victims of crime, except in cases where there has been a representation
and reliance, does not involve giving special treatment to the police . . .
116. The question is therefore not whether the police should have
special immunity, but whether an exception should be made to the
ordinary application of common law principles . . .
C 51 As previously explained, however, the reasoning by which Lord
Keith arrived at the same conclusion as Lord Toulson JSC reects the period
during which the case was decided, when the Anns case continued to be
inuential. Following the two-stage approach to liability set out in the Anns
case, Lord Keith considered rst the argument that a duty of care arose in
consequence of the foreseeability of harm to potential victims if the
D murderer was not apprehended. In that regard, Lord Keith emphasised that
the foreseeability of harm was not in itself a su–cient basis for the
imposition of a duty of care, and introduced the concept of proximity as
a further ingredient. He concluded that there was no ingredient or
characteristic giving rise to the necessary proximity between the police and
the claimants daughter (who was one of the murderers victims), and that
the circumstances of the case were not capable of establishing a duty of care
E
owed towards her by the police.
52 As Lord Toulson JSC remarked in Michaels case [2015] AC 1732,
para 42, if Lord Keith had stopped at that point, it is unlikely that the
decision would have caused controversy. However, having observed that
what he had said was su–cient for the disposal of the appeal, Lord Keith
went on to discuss the application of the second stage of the approach laid
F down in the Anns case: namely, whether there were reasons of public policy
why an action should not lie in circumstances such as those of the present
case: Hills case [1989] AC 53, 63. He concluded that there were such
reasons, and expressed the view that the Court of Appeal had been right to
take the view that the police were immune from an action of this kind:
pp 63—64.
G 53 It is important to note that this part of Lord Keiths speech was
unrelated to a determination of whether the police were liable for negligence
resulting in personal injury, where anyone else would be subject to liability
under ordinary principles of the law of tort. He had already conrmed the
existence of liability in those circumstances, as explained at paras 45—46
above. His comments about public policy were concerned with a di›erent
question, namely whether the police generally owe a duty of care to
H individual members of the public, in the performance of their investigative
function, to protect them from harm caused by criminals: a question to
which, on the principles established prior to the Anns case and subsequently
reinstated in Stovin v Wise, Gorringes case and Michaels case, as explained
in paras 34—37 and 39 above, the answer was plainly no.
754
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Lord Reed JSC
54 In relation to that issue, the decision in Hills case has now to be A

understood in the light of the later authorities. In Michaels case [2015] AC
1732, in particular, Lord Toulson JSC (with whom Lord Neuberger of
Abbotsbury PSC, Lord Mance JSC, Lord Hodge JSC and I agreed) reached
the same conclusion as in Hills case, but did so primarily by applying the
reasoning in Stovin v Wise and Gorringes case. Policy arguments were
considered when addressing the argument that the court should create a new B
duty of care as an exception to the ordinary application of common law
principles: see, in particular, paras 116—118. Lord Toulson JSC concluded
that, in the absence of special circumstances, there is no liability in cases of
pure omission by the police to perform their duty for the prevention of
violence: para 130.
55 Hills case is not, therefore, authority for the proposition that the
C
police enjoy a general immunity from suit in respect of anything done by
them in the course of investigating or preventing crime. On the contrary, the
liability of the police for negligence or other tortious conduct resulting in
personal injury, where liability would arise under ordinary principles of the
law of tort, was expressly conrmed. Lord Keith spoke of an immunity,
meaning the absence of a duty of care, only in relation to the protection of
the public from harm through the performance by the police of their D
function of investigating crime.
56 Arguing against that conclusion, counsel for the respondents relied
particularly on ve authorities as supporting the existence of a general
immunity. The rst was the decision of the House of Lords in Calveley v
Chief Constable of the Merseyside Police [1989] AC 1228, in which police
o–cers who had been suspended pending the completion of disciplinary E
proceedings sought damages in respect of an alleged failure to conduct the
proceedings expeditiously. They claimed to have su›ered damage to their
reputation, depression, and a loss of earnings. They alleged that they were
owed a duty by the investigating o–cers to exercise proper care and
expedition in the conduct of the investigation. It was argued that a police
o–cer investigating a suspected crime owes a duty of care to the suspect and F
that the same principle applied to the investigation of a disciplinary o›ence.
The House of Lords rejected the argument. Lord Bridge pointed out that the
claims in negligence foundered on the rocks of elementary principle:
p 1238. The losses claimed, so far as non-nancial, were not reasonably
foreseeable, and the nancial claims ran up against the formidable obstacles
in the way of liability in negligence for purely economic loss. Lord Bridge
G
added that all other considerations apart, it would be contrary to public
policy to prejudice the fearless and e–cient discharge by police o–cers of
their vitally important public duty of investigating crime by requiring them
to act under the shadow of a potential action for damages for negligence by
the suspect.
57 Reliance was placed on the latter dictum, but it is of no assistance
to the respondent in the present case. Lord Bridges remark has to be H
understood in its context. The case sought to establish a novel type of
liability relating to the manner in which an investigation was conducted.
Lord Bridges reference to policy considerations was directed to that claim:
he was not addressing the question whether the police may owe a duty of
755
(SC(E))
Lord Reed JSC
A care to avoid causing reasonably foreseeable physical injury in the course of

their operations.
58 The second authority relied on was the judgment of Steyn LJ in
Elguzouli-Daf v Comr of Police of the Metropolis [1995] QB 335. The issue
in the appeal was whether the Crown Prosecution Service owed a duty of
care to a person it was prosecuting to act with reasonable diligence in
B obtaining and acting on scientic evidence which showed him to be
innocent. The Court of Appeal held that no such duty was owed. Steyn LJ
observed that the question raised was a novel one, which in the light of the
Caparo case had to be considered by analogy with established categories of
liability. In that regard, Hills case was considered instructive. Steyn LJ
noted that the issue in that case was whether a claim against the police for a
negligent failure to apprehend a violent criminal was sustainable. He
C
summarised [1995] QB 335, 347 the e›ect of the second part of Lord Keiths
speech as being that
the House of Lords further held, as a second and separate ground of
decision, that as a matter of public policy the police were immune from
actions of negligence in respect of their activities in the investigation and
D suppression of crime.
Steyn LJ added that it did not follow that the police might not be liable
where there was some form of assumption of responsibility.
59 The decision in Elguzouli-Dafs case has been cited with approval on
many occasions, and its correctness was recently conrmed by this court in
SXH v Crown Prosecution Service (United Nations High Comr for Refugees
E intervening) [2017] 1 WLR 1401. But Steyn LJs summary of the e›ect of
the second part of Lord Keiths speech in Hill might convey a misleading
impression if taken out of context. Steyn LJ can hardly have meant that the
police enjoyed a blanket immunity in respect of anything done in the course
of their activities in the investigation and suppression of crime, given his
reliance on Lord Keiths speech in Hills case. As already explained, Lord
F Keith conrmed the liability of the police for personal injuries in accordance
with the ordinary law of tort, and cited the decision in Rigby v Chief
Constable of Northamptonshire [1985] 1 WLR 1242 with approval.
60 Thirdly, reliance was placed on the speech of Lord Steyn in Brooks v
Comr of Police of the Metropolis [2005] 1 WLR 1495. In that case, the
claimant sought damages in respect of a psychiatric illness which he claimed
to have su›ered in consequence of his insensitive treatment by o–cers
G
investigating an incident in which he had been assaulted and a friend of his
had been murdered. The issue before the House of Lords was whether it was
arguable that the police owed him a duty of care (a) to take reasonable steps
to assess whether he was a victim of crime and, if so, to accord him
reasonably appropriate protection and support, (b) to take reasonable steps
to a›ord him the protection, assistance and support commonly a›orded to a
H key eye-witness to a serious crime of violence, and (c) to a›ord reasonable
weight to the account given by him and to act on the account accordingly.
The House held that it was not. The correctness of that conclusion is not in
question. On ordinary principles, behaviour which is merely insensitive is
not normally actionable, even if it results in a psychiatric illness.
756
(SC(E)) [2018] AC
Lord Reed JSC
61 Lord Steyn recognised that this was a novel type of claim, to which A
Lord Bridges observations in the Caparo case applied. As in Elguzouli-
Dafs case, he based his approach to the question whether it would be right
to recognise a duty of care of the kind alleged on Lord Keiths speech in
Hills case. He cited rst Lord Keiths conrmation of the liability of the
police for the negligent iniction of personal injuries in accordance with the
general law of tort. He went on to cite the part of Lord Keiths speech B
concerning whether the police owed a duty of care to future victims in the
performance of their investigative function. In the passage on which reliance
was placed, he stated [2005] 1 WLR 1495, para 30:
. . . A retreat from the principle in Hills case would have detrimental
e›ects for law enforcement. Whilst focusing on investigating crime, and
the arrest of suspects, police o–cers would in practice be required to C
ensure that in every contact with a potential witness or a potential victim
time and resources were deployed to avoid the risk of causing harm or
o›ence. Such legal duties would tend to inhibit a robust approach in
assessing a person as a possible suspect, witness or victim. By placing
general duties of care on the police to victims and witnesses the polices
ability to perform their public functions in the interests of the community,
D
fearlessly and with despatch, would be impeded. It would, as was
recognised in Hills case, be bound to lead to an unduly defensive
approach in combating crime.
62 As Lord Toulson JSC noted in Michaels case, by endorsing the
principle in the Hill case in the terms that he did, Lord Steyn conrmed that
the functions of the police which he identied were public law duties and
E
did not give rise to private law duties of care in the absence of special
circumstances, such as an assumption of responsibility. Nothing in his
reasoning is inconsistent with the existence of a duty of care to avoid causing
physical harm in accordance with ordinary principles of the law of
negligence. Lord Steyn plainly had no intention of undermining the
conrmation in Hills case that the police were under such a duty of care.
The passage cited was directed towards a di›erent issue. F
63 Fourthly, reliance was placed on Smith v Chief Constable of Sussex
Police (Secretary of State for the Home Department intervening) [2009] AC
225, one of two appeals which the House of Lords heard together, the other
being Van Colle v Chief Constable of the Herefordshire Police (Secretary of
State for the Home Department intervening). Smiths case concerned the
question whether, where a person had informed the police that he had G
received threats of violence, the police then owed him a duty of care to
prevent the threats from being carried out. Applying the established
principles discussed earlier, the answer was no, in the absence of special
circumstances such as an assumption of responsibility, and the House of
Lords so held. The House was not however referred to the line of authority
including East Su›olk Rivers Catchment Board v Kent, Stovin v Wise and
Gorringes case, which would have provided a basis for deciding the case; H
nor did it rely on the equivalent body of authority concerned with omissions
by private individuals and bodies, such as Smith v Littlewoods Organisation
Ltd. Those were the bases on which a very similar issue was subsequently
decided in Michaels case.
757
(SC(E))
Lord Reed JSC
A 64 In Smith v Chief Constable of Sussex Police [2009] AC 225, the

majority of the House were in agreement that, absent special circumstances
such as an assumption of responsibility, the police owed no duty of care to
individuals a›ected by the discharge of their public duty to investigate
o›ences and prevent their commission. Lord Hope of Craighead, with
whose reasoning the other members of the majority agreed, followed the
B
approach adopted in Brooks v Comr of Police of the Metropolis [2005]
1 WLR 1495 in the passage cited in para 61 above, and emphasised the risk
that the imposition of a duty of care of the kind contended for would inhibit
a robust approach in assessing a person as a possible suspect or victim. He
acknowledged that There are, of course, cases in which actions of the police
give rise to civil claims in negligence in accordance with ordinary delictual
principles, and cited Rigby v Chief Constable of Northamptonshire [1985]
C 1 WLR 1242 as an example: [2009] AC 225, para 79. Lord Phillips of Worth
Matravers CJ summarised the core principle to be derived from the Hill and
Brooks cases as being that in the absence of special circumstances, the police
owe no common law duty of care to protect individuals against harm caused
by criminals. Lord Brown approached the matter in a similar way,
concluding that, in the absence of an assumption of responsibility towards
D the eventual victim, the police generally owe no duty of care to prevent
injuries deliberately inicted by third parties, when they are engaged in
discharging their general duty of combating and investigating crime. None
of the speeches is inconsistent with the existence of a duty of care to avoid
causing physical harm in accordance with ordinary principles of the law of
negligence.
65 Fifthly, reliance was placed on the judgment of the Court of Appeal,
E delivered by Sir Anthony May P, in Desmond v Chief Constable of
Nottinghamshire Police [2011] PTSR 1369. The issue in the case was
whether the chief constable owed a duty of care when providing information
to the criminal records bureau about the claimant, so as to enable the bureau
to respond to a request for an enhanced criminal record certicate, made in
connection with a job application. The chief constable was under a
F statutory duty to provide such information as was in his opinion relevant
and ought to be included in the certicate. It was argued that the chief
constable had made an error of judgement in deciding that certain
information was relevant and ought to be included, with the result that the
job application had been unsuccessful. The claim was for damages in respect
of nancial loss, stress and anxiety.
66 The court correctly identied the relevant legal principles as being
G those laid down in East Su›olk River Catchment Board v Kent, Stovin v
Wise and Gorringe, and concluded that no duty of care was owed. Reliance
was however placed by counsel on an earlier part of the judgment, in which
the court considered the cases on which the judge below had based his
approachHill, Elguzouli-Daf, Brooks, and Smith v Chief Constable of
Sussex Policeand explained why, in its view, they did not provide an
H answer to the case at hand. The court [2011] PTSR 1369, para 31
summarised the principle to be derived from those decisions as being that
in the absence of special circumstances, the police and the Crown
Prosecution Service do not generally in the interests of the whole
community owe individual members of the public, be they victims,
758
(SC(E)) [2018] AC
Lord Reed JSC
witnesses or those who are prosecuted, a common law duty of care in A

undertaking and performing their operational duties of investigating,
detecting, suppressing and prosecuting crime.
The court went on, at para 32, to state that that principle might not apply
in exceptional circumstances at the margins; to an ordinary case
where, for instance, in a road accident the police cause personal injury or B
physical damage by negligent driving; nor to cases where on particular
facts a police o–cer is taken to have assumed responsibility to an
individual claimant.
67 That summary of the law appears to treat the police as being
generally under no duty of care when undertaking and performing their
operational duties, other than in special circumstances. It does not reect C
the acceptance of the House of Lords in Hills case, reected also in later
cases such as Frost, Alcock and Smith v Chief Constable of Sussex Police,
that the police are generally under a duty of care to avoid causing personal
injury where such a duty would arise according to ordinary principles of the
law of negligence. Nor can a case such as Rigby be distinguished as an
exceptional case at the margins: it was treated both in Hills case and in
D
Smith v Chief Constable of Sussex Police not as an anomaly, but as an
instance of a wider principle. In short, while it is not suggested in the present
case that the decision in Desmond was wrong, the particular passage relied
on is not an accurate summary of the law.
68 On examination, therefore, there is nothing in the ratio of any of the
authorities relied on by the respondent which is inconsistent with the police
being under a liability for negligence resulting in personal injuries where E
such liability would arise under ordinary principles of the law of tort. That
is so notwithstanding the existence of some dicta which might be read as
suggesting the contrary.
69 In relation to this discussion, it is necessary to respond briey to
some of the points made by Lord Hughes JSC in his judgment:
1. I do not suggest that the discussion of policy considerations in cases F
such as Hill, Brooks and Smith should be consigned to history. But it is
important to understand that such discussions are not a routine aspect of
deciding cases in the law of negligence, and are unnecessary when existing
principles provide a clear basis for the decision, as in the present appeal.
I would not agree with Lord Hughes JSCs statement that they are the
ultimate reason why there is no duty of care towards victims, suspects or G
witnesses imposed on police o–cers engaged in the investigation and
prevention of crime. The absence of a duty towards victims of crime, for
example, does not depend merely on a policy devised by a recent generation
of judges in relation to policing: it is based on the application of a general
and long-established principle that the common law imposes no liability to
protect persons against harm caused by third parties, in the absence of a
recognised exception such as a voluntary assumption of responsibility. H
2. The courts are not policy-making bodies in the sense in which that
can be said of the Law Commission or government departments. But the
exercise of judgment about the potential consequences of a decision has a
part to play when the court is asked to decide whether a novel duty of care
759
(SC(E))
Lord Reed JSC
A exists, together with a consideration of existing principles and of the need

for the law to develop coherently and incrementally: see para 24 above.
3. Hill, Brooks and Smith were all cases in which novel types of claim
were made. Hill was also decided at a time when, following Anns, policy
arguments were particularly prominent in judicial reasoning, and when the
principle in East Su›olk Rivers Catchment Board, which could otherwise
B
have provided a solution, had been rejected. Brooks and Smith were cases in
which existing principles pointed strongly towards the rejection of a duty of
care, but since those principles were challenged or argued to be subject to
exceptions which would accommodate the instant case, it is entirely
understandable that the House of Lords referred to policy considerations as
supporting their conclusion.
4. The distinction between careless acts causing personal injury, for which
C the law generally imposes liability, and careless omissions to prevent acts (by
other agencies) causing personal injury, for which the common law generally
imposes no liability, is not a mere alternative to policy-based reasoning, but
is inherent in the nature of the tort of negligence. For the same reason,
although the distinction, like any other distinction, can be di–cult to draw
in borderline cases, it is of fundamental importance. The central point is
D that the law of negligence generally imposes duties not to cause harm to
other people or their property: it does not generally impose duties to provide
them with benets (including the prevention of harm caused by other
agencies). Duties to provide benets are, in general, voluntarily undertaken
rather than being imposed by the common law, and are typically within the
domain of contract, promises and trusts rather than tort. It follows from
that basic characteristic of the law of negligence that liability is generally
E imposed for causing harm rather than for failing to prevent harm caused
by other people or by natural causes. It is also consistent with that
characteristic that the exceptions to the general non-imposition of liability
for omissions include situations where there has been a voluntary
assumption of responsibility to prevent harm (situations which have
sometimes been described as being close or akin to contract), situations
F where a person has assumed a status which carries with it a responsibility to
prevent harm, such as being a parent or standing in loco parentis, and
situations where the omission arises in the context of the defendants having
acted so as to create or increase a risk of harm.
5. The argument that most cases can be equally analysed in terms of either
an act or an omission, sometimes illustrated by asking whether a road
accident is caused by the negligent drivers act of driving or by his omission
G to apply the brakes or to keep a good lookout, does not reect the true
nature and purpose of the distinction, as explained above. The argument
was answered by Lord Ho›mann in Stovin v Wise [1996] AC 923, 945:
One must have regard to the purpose of the distinction as it is used in
the law of negligence, which is to distinguish between regulating the way
in which an activity may be conducted and imposing a duty to act upon
H
a person who is not carrying on any relevant activity. 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
760
(SC(E)) [2018] AC
Lord Reed JSC
motorist with whom I collide can plausibly say that the damage was A
caused by my driving into him at 50 miles an hour.
6. In relation to the cases discussed in para 114 of Lord Hughes JSCs
judgment, it follows from the foregoing explanation of the distinction
between acts and omissions that the Hill and Smith cases were concerned
with omissions, as in each case the claimant sought to have the police held
liable for death or personal injuries which had been caused not by the police B
but by a third party. The Calveley, Elguzouli-Daf and Brooks cases, on the
other hand, were concerned with positive acts, but were cases in which a
duty of care was held not to exist for other reasons, as explained earlier. In
Calveleys case the plainti›s sought to have the police held liable for
economic loss and other harm which they had caused by subjecting the
plainti›s to disciplinary proceedings which were unduly prolonged. In C
Elguzouli-Dafs case, the plainti›s sought to have the Crown Prosecution
Service held liable for a loss of liberty which they had caused by subjecting
the plainti›s to criminal proceedings which were unduly prolonged. In
Brooks, the claimant sought to have the police held liable for a mental illness
which they had caused by treating him inconsiderately.
7. So far as the cases discussed in paras 115—117 of Lord Hughes JSCs
judgment are concerned, Goldman v Hargrave [1967] 1 AC 645 and Thomas D
Graham & Co Ltd v Church of Scotland General Trustees 1982 SLT (Sh Ct)
26 concerned the responsibilities of an occupier of land in respect of dangers
to his neighbours property which arise on his land: responsibilities which can
be understood as arising from his exclusive right of possession. Michaels
case was clearly concerned with an omission, as Lord Toulson JSCs
judgment made clear: the police were sought to be made liable for the death E
of a woman at the hands of a third party. Barrett v Eneld London Borough
Council [2001] 2 AC 550, as explained in Gorringes case [2004] 1 WLR
1057, para 39, was a case where there was an assumption of parental
responsibilities. Phelps v Hillingdon London Borough Council [2001] 2 AC
619, as explained in Gorringes case at para 40, concerned a relationship
which involved an implied undertaking to exercise reasonable care, akin to
the relationship between doctor and patient. F
70 Returning, then, to the second of the issues identied in para 20
above, it follows that there is no general rule that the police are not under
any duty of care when discharging their function of preventing and
investigating crime. They generally owe a duty of care when such a duty
arises under ordinary principles of the law of negligence, unless statute or the
common law provides otherwise. Applying those principles, they may be G
under a duty of care to protect an individual from a danger of injury which
they have themselves created, including a danger of injury resulting from
human agency, as in the Dorset Yacht case [1970] AC 1004 and Attorney
General of the British Virgin Islands v Hartwell [2004] 1 WLR 1273.
Applying the same principles, however, the police are not normally under a
duty of care to protect individuals from a danger of injury which they have
H
not themselves created, including injury caused by the conduct of third
parties, in the absence of special circumstances such as an assumption of
responsibility.
71 In the light of that conclusion, the remaining issues in the case are
relatively straightforward and can be dealt with comparatively briey.
761
(SC(E))
Lord Reed JSC
A (3) Is this case concerned with an omission or with a positive act?

72 The role of the police in the accident in which Mrs Robinson was
injured is not comparable to that of the defendant in the examples
commonly given of pure omissions: for example, someone who watches and
does nothing as a blind man approaches the edge of a cli›, or a child drowns
in a shallow pool. Nor, to cite more realistic examples, is it comparable to
B that of the police authority in Hills case, which failed to arrest a murderer
before a potential future victim was killed, or the police authority in
Michaels case, which failed to respond to an emergency call in time to save
the caller from an attack. In such cases the defendant played no active part
in the critical events. Nor is this a case in which the chief constable is sought
to be made liable for the conduct of a third party. Lord Reids observation in
C
the Dorset Yacht case [1970] AC 1004, 1027 is apposite:
the ground of liability is not responsibility for the acts of the escaping
trainees; it is liability for damage caused by the carelessness of these
o–cers in the knowledge that their carelessness would probably result in
the trainees causing damage of this kind.
73 In the present case, the ground of action is liability for damage
D caused by carelessness on the part of the police o–cers in circumstances in
which it was reasonably foreseeable that their carelessness would result in
Mrs Robinsons being injured. Her complaint is not that the police o–cers
failed to protect her against the risk of being injured, but that their actions
resulted in her being injured. In short, this case is concerned with a positive
act, not an omission.
E
(4) Did the police o–cers owe a duty of care to Mrs Robinson?
74 It was not only reasonably foreseeable, but actually foreseen by the
o–cers, that Williams was likely to resist arrest by attempting to escape.
That is why Willan summoned assistance in the rst place, before attempting
to arrest Williams, and why it was decided that DS Roebuck and DC Green
F should be positioned on the opposite side of Williams from Willan and
Dhurmea, so as to block his escape route. The place where the o–cers
decided to arrest Williams was a moderately busy shopping street in a town
centre. Pedestrians were passing in close vicinity to Williams. In those
circumstances, it was reasonably foreseeable that if the arrest was attempted
at a time when pedestriansespecially physically vulnerable pedestrians,
such as a frail and elderly womanwere close to Williams, they might be
G
knocked into and injured in the course of his attempting to escape. That
reasonably foreseeable risk of injury was su–cient to impose on the o–cers
a duty of care towards the pedestrians in the immediate vicinity when the
arrest was attempted, including Mrs Robinson.
(5) Was the Court of Appeal entitled to overturn the recorders nding that
H the o–cers had failed in their duty of care?
75 The Court of Appeal was correct to emphasise the importance of not
imposing unrealistically demanding standards of care on police o–cers
acting in the course of their operational duties. That is most obviously the
case where critical decisions have to be made in stressful circumstances with
762
(SC(E)) [2018] AC
Lord Reed JSC
little or no time for considered thought. This point has long been recognised. A
For example, in Marshall v Osmond [1983] QB 1034, concerned with a
police driver engaged in the pursuit of a suspect, Donaldson MR stated, as
noted at para 47 above, that the o–cers duty was to exercise such care and
skill as is reasonable in all the circumstances. He went on to state,
at p 1038, that those were no doubt stressful circumstances, and that
although there was no doubt that the o–cer made an error of judgment, he B
was far from satised that the o–cer had been negligent. The same point
was made, in a context closer to that of the present case, by May LJ in
Costello v Chief Constable of Northumbria [1999] ICR 752, 767, where he
remarked that liability should not turn on . . . shades of personal judgment
and courage in the heat of the potentially dangerous moment.
76 It is also necessary to remember that a duty to take reasonable care
can in some circumstances be consistent with exposing individuals to a C
signicant degree of risk. That is most obviously the case in relation to the
police themselves. There are many circumstances in which police o–cers are
exposed to a risk of injury, but in which such exposure is consistent with
the taking of reasonable care for their safety. Equally, there may be
circumstances which justify the taking of risks to the safety of members of
the public which would not otherwise be justied. A duty of care is always a D
duty to take such care as is reasonable in the circumstances.
77 In the present case, the recorders nding of negligence was based on a
number of matters. It is unnecessary to consider them all, as at least one of
them clearly did not involve imposing on the o–cers an unrealistically high
standard of care. The recorder accepted DS Willans evidence that the o–cers
were aware that there was a signicant risk that Williams would try to run
E
away, and that he was aware of the potential for harm to members of the
public in that event. Willan also gave evidence that it was necessary to
consider the risk to those in the vicinity, and that if it had appeared to him that
someone was in harms way, he would have walked past Williams without
e›ecting the arrest. The recorder noted that that was in accordance with the
relevant guidance provided to police o–cers. Although Mrs Robinson had
just walked past Williams and was within a yard of him, in full view of the F
o–cers, Willan simply failed to notice her.
78 The recorder was entitled to nd negligence on that basis alone,
regardless of the soundness of his other criticisms of how the arrest was
carried out. Willan accepted that he ought to have been taking care for the
safety of members of the public in the immediate vicinity. If he had been
taking such care, he would have noticed Mrs Robinson: she was immediately
G
in front of him, next to Williams. This was not a situation in which Williams
had to be arrested at that precise moment, regardless of the risk that a
passer-by might be injured: on Willans evidence, if he had noticed that
someone was in harms way, he would not have made the arrest at that
moment.
(6) Were Mrs Robinsons injuries caused by the o–cers breach of their duty H
of care?
79 The chain of events which resulted in Mrs Robinsons being injured
was initiated by DS Willans and PC Dhurmeas attempt to arrest Williams.
It was their taking hold of him which caused him to attempt to struggle free,
763
(SC(E))
Lord Reed JSC
A and it was in the course of the resultant tussle between the three men that
Mrs Robinson was knocked over and injured.
80 In these circumstances, it is impossible to argue that the chain of
causation linking the attempt to arrest Williams to Mrs Robinsons being
injured was interrupted by Williamss voluntary decision to resist arrest,
which resulted in his knocking into her. The voluntary act of a third party,
B
particularly when it is of a criminal character, will often constitute a novus
actus interveniens, but not when that act is the very one which the defendant
was under a duty to guard against: see, for example, the Dorset Yacht case
[1970] AC 1004 and Attorney General of the British Virgin Islands v
Hartwell [2004] 1 WLR 1273. It would be absurd to say that the o–cers
owed Mrs Robinson a duty of care not to arrest Williams when she was in
the immediate vicinity, because of the danger that she might be injured if he
C attempted to escape, and then to hold that his attempted escape broke the
chain of causation between their negligently arresting him when she was
next to him, and her being injured when he attempted to escape. In short,
Mrs Robinson was injured as a result of being exposed to the very danger
from which the o–cers had a duty of care to protect her.
D Conclusion
81 For these reasons, I would allow the appeal, hold that the chief
constable is liable in damages to Mrs Robinson, and remit the case for the
assessment of damages.
LORD MANCE DPSC

E
82 I have read with benet the judgments prepared by Lord Reed and
Lord Hughes JJSC in this case. I agree that the case is one of positive conduct
by the police in instigating an arrest on public pavement, which caused
injury to Mrs Robinson, an otherwise uninvolved passer-by. Having
watched the excellent CCTV recording and compared it with the judges
ndings, I confess to the same doubt as Lord Hughes JSC about the judges
nding of negligence. The pavement was quite busy, the relevant suspects
F were for the rst time stationary, and Mrs Robinson might appear to have
passed by and to be at a little distance, by the time the police seized what
they obviously thought was the opportune moment. However, like Lord
Hughes JSC and bearing in mind the evidence accepted by the judge as set
out by Lord Reed JSC in his para 77, I do not on balance consider that this is
a case where an appellate court should interfere with the judges
G conclusions, after hearing all the evidence.
83 As Lord Reed JSC demonstrates, it is unnecessary in every claim of
negligence to resort to the three-stage analysis (foreseeability, proximity and
fairness, justice and reasonableness) identied in Caparo Industries plc v
Dickman [1990] 2 AC 605. There are well-established categories, including
(generally) liability for causing physical injury by positive act, where the
latter two criteria are at least assumed. The concomitant is that there is,
H
absent an assumption of responsibility, no liability for negligently omitting
to prevent damage occurring to a potential victim. This also provides a
rationale for the general rule that the police and CPS have no liability for
failure, by e–cient investigation or pursuit of an actual or potential o›ence,
to prevent a subsequent victim from su›ering physical injury at the hands of
764
(SC(E)) [2018] AC
Lord Mance DPSC
a third party for whose acts the state is not responsible: Michael v Chief A
Constable of South Wales Police (Refuge intervening) [2015] AC 1732,
paras 114—130, 137. Economic loss also falls outside the established
category of liability for physical injury, but an assumption of responsibility
for economic loss will, as discussed in Hedley Byrne & Co Ltd v Heller &
Partners Ltd [1964] AC 465, likewise satisfy the latter two Caparo criteria.
Outside any established category, the law will proceed incrementally, and all B
three stages of the Caparo analysis will be material.
84 It would be unrealistic to suggest that, when recognising and
developing an established category, the courts are not inuenced by policy
considerations. No one now suggests that the common law has not changed
since the Saxon era, merely to be revealed from time to time by an
increasingly perceptive judiciary. As Lord Reid said famously in The Judge
as Law maker: There was a time when it was thought almost indecent to C
suggest that judges make lawthey only declare it . . . But we do not
believe in fairy tales any more: (1987) 63(3) Journal of the Chartered
Institute of Arbitrators 180, see also Lord Go›s comments on the
declaratory theory of the common law in Kleinwort Benson Ltd v Lincoln
City Council [1999] 2 AC 349, 377—379. The courts are not a Law
Commission, but, in recognising the existence of any generalised duty in D
particular circumstances they are making policy choices, in which
considerations such as proximity and fairness, justice and reasonableness
must inhere. Landmark examples are Donoghue v Stevenson [1932] AC
562, in relation to physical injury, and Hedley Byrne & Co Ltd v Heller &
Partners Ltd [1964] AC 465, in circumstances where there has been an
assumption of responsibility to give accurate information upon which it is
E
foreseeable that the recipient will rely to its economic benet or detriment.
85 The key to the application of the above principles is to ascertain
whether or not a particular situation falls within an established category.
Lord Reed JSC treats physical loss resulting foreseeably from positive
conduct as constituting axiomatically such a category, whatever the precise
circumstances. I accept that principle as generally correct: see e g Alcock v
Chief Constable of South Yorkshire Police [1992] 1 AC 310, 396, per Lord F
Keith of Kinkel. But I am not persuaded that it is always a safe guide at the
margins. I note that Lord Oliver of Aylmerton went no further in the
Caparo case [1990] 2 AC 605, 632F than to say that, in the context of loss
caused by physical damage, the existence of the nexus between the careless
defendant and the injured plainti› can rarely give rise to any di–culty. He
went on, at p 633, to identify Hills case, so far as concerns the alternative G
ground of that decision, as a case:
where, in any ordinary meaning of the words, a relationship of
proximity (in the literal sense of closeness) exists but where the law,
whilst recognising the fact of the relationship, nevertheless denies a
remedy to the injured party on the ground of public policy.
H
86 Lord Reed JSC says, at para 28 above, that Smith v Ministry of
Defence (JUSTICE intervening) [2014] AC 52, was a case where it was
appropriate to apply the three-stage Caparo approach because it raised
a novel legal issue, relating to the provision of protective equipment to
soldiers on active duty, and the scope of combat immunity: it did not
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Lord Mance DPSC
A concern an established category of liability. But, why not? Combat

immunity, where it applies, is, I suggested [2014] AC 52, para 114, itself
not so much an entirely separate principle as the result of a general
conclusion that it is not fair, just or reasonable to regard the Crown or its
o–cers, soldiers or agents as under a duty of care to avoid injury or death
in their acts or omissions in the conduct of an active military operation or
B act of war.
And, however that may be, a reading of the judgments shows that no
distinctions were there drawn between acts and omissions, either generally
or in the specic context of the discussion which is to be found on prior
authority, including Hill v Chief Constable of West Yorkshire [1989] AC 53,
Elguzouli-Daf v Comr of Police of the Metropolis [1995] QB 335, Stovin v
C
Wise [1996] AC 923, Brooks v Comr of Police of the Metropolis [2005]
1 WLR 1495 and Van Colle v Chief Constable of the Hertfordshire Police
(Secretary of State for the Home Department intervening) [2009] AC 225:
see Smith v Ministry of Defence (JUSTICE intervening) [2014] AC 52, at,
for example, paras 82—83, 95—96, 97, per Lord Hope of Craighead DPSC
and paras 108—109, 114, 117, 136, per Lord Mance JSC (dissenting).
D 87 Lord Carnwath JSCs (dissenting) judgment at paras 157—170 is also
of interest, for noting that the issue was a novel one, and that the closest
analogy consisted in the above line of cases about police responsibility, again
without drawing any distinction between acts and omissions. The case was
a novel one, not because it fell outside the general category of negligent acts
or omissions allegedly causing physical loss, but because it was not
E (yet) established that the established category embraced the particular types
of acts or omissions alleged and the circumstances in which soldiers might
su›er from them. Indeed, it was accepted on all sides that combat immunity
meant that the established category was not on any view completely
unqualied, and the question arose in that respect what scope the courts
should, as a matter of policy, attach to the principle of combat immunity.
F 88 A similar di–culty arises in tting other authorities which Lord
Reed JSC accepts as correctly decided into any absolutely xed legal mould.
Hills case and Smith v Chief Constable of Sussex Police [2009] AC 225 can,
I agree, be rationalised as cases of omission, but that was not how they were
reasoned. The case of Calveley v Chief Constable of the Merseyside Police
[1989] AC 1228 involved a claim by police o–cers for pursuing disciplinary
proceedings with insu–cient expedition, thereby, it was alleged, causing
G
them physical loss, which was held to be unforeseeable, and economic loss of
a kind, which is, in the absence of any assumption of responsibility, generally
irrecoverable. But again Lord Bridge of Harwich buttressed his conclusion
with general statements about the need to shield the police from the pursuit
of claims in relation to their investigative activity, without distinction
between acts and omissions.
H 89 In Elguzouli-Dafs case [1995] QB 335 there were two similarly
based claims, but the consequences of the CPSs failure to pursue their
investigation with su–cient expedition were alleged to be that the claimants
remained in custody for some 22 and 85 days respectively. In the absence of
any specic assumption of responsibility, the Court of Appeal held that
766
(SC(E)) [2018] AC
Lord Mance DPSC
policy factors argued against the recognition of a duty of care owed by the A
CPS to those it prosecutes, per Steyn LJ, at p 349, who went on:
While it is always tempting to yield to an argument based on the
protection of civil liberties, I have come to the conclusion that the
interests of the whole community are better served by not imposing a duty
of care on the CPS.
B
As Morritt LJ put it, at p 352, policy considerations similar to those which
weighed with Lord Keith in Hills case excluded any general duty to use
reasonable care in the institution and conduct of criminal proceedings. The
reasoning contains no hint of a categorical distinction between acts and
omissions.
90 A year later, the House had before it in Marc Rich & Co AG v
Bishop Rock Marine Co Ltd [1996] AC 211 a claim by cargo owners against C
a classication society by whose alleged negligence the carrying vessel was
allowed to continue on her voyage after temporary repairs to a crack in her
hull, which then caused the loss of both vessel and cargo. The cargo owners
primary submission was that, this being a case of physical damage to
property in which the plainti› had a proprietary or possessory interest, the
only requirement was proof of reasonable foreseeability. The House D
rejected this categorically, in the following passage from Lord Steyns
speech, p 235:
Counsel for the cargo owners submitted that in cases of physical
damage to property in which the plainti› has a proprietary or possessory
interest the only requirement is proof of reasonable foreseeability. For
this proposition he relied on observations of Lord Oliver of Aylmerton in E
Caparo Industries plc v Dickman [1990] 2 AC 605, 632—633. Those
observations, seen in context, do not support his argument. They merely
underline the qualitative di›erence between cases of direct physical
damage and indirect economic loss. The materiality of that distinction is
plain. But since the decision in Dorset Yacht Co Ltd v Home O–ce
[1970] AC 1004 it has been settled law that the elements of foreseeability
and proximity as well as considerations of fairness, justice and F
reasonableness are relevant to all cases whatever the nature of the harm
sustained by the plainti›. Saville LJ explained at p 1077: whatever the
nature of the harm sustained by the plainti›, it is necessary to consider the
matter not only by inquiring about foreseeability but also by considering
the nature of the relationship between the parties; and to be satised that
in all the circumstances it is fair, just and reasonable to impose a duty of G
care. Of course . . . these three matters overlap with each other and are
really facets of the same thing. For example, the relationship between the
parties may be such that it is obvious that a lack of care will create a risk
of harm and that as a matter of common sense and justice a duty should
be imposed . . . Again in most cases of the direct iniction of physical loss
or injury through carelessness, it is self-evident that a civilised system of
H
law should hold that a duty of care has been broken, whereas the
iniction of nancial harm may well pose a more di–cult problem. Thus
the three so-called requirements for a duty of care are not to be treated as
wholly separate and distinct requirements but rather as convenient and
helpful approaches to the pragmatic question whether a duty should be
767
(SC(E))
Lord Mance DPSC
A imposed in any given case. In the end whether the law does impose a duty
in any particular circumstances depends upon those circumstances . . .
That seems to me a correct summary of the law as it now stands. It
follows that I would reject the rst argument of counsel for the cargo
owners. (Emphasis added.)
While both the House and Saville LJ [1994] 1 WLR 1071 were happy to
B accept that in most cases of the direct iniction of physical loss or injury
through carelessness, liability was self-evident, they were cautious to warn
against absolute rules in that respect.
91 Elguzouli-Dafs case was, as Lord Reed JSC notes, at para 59,
followed and applied in SXH v Crown Prosecution Service [2017] 1 WLR
1401, where the complaint was that the CPS had acted unreasonably in
C prosecuting an asylum seeker, leading to her detention for some months.
Lord Toulson JSC giving the majority judgment said, at para 38:
The duty of the CPS is to the public, not to the victim or to the
suspect, who have separate interests. To recognise a duty of care towards
victims or suspects or both, would put the CPS in positions of potential
conict, and would also open the door to collateral interlocutory civil
D proceedings and trials, which would not be conducive to the best
operation of the criminal justice system. Similar considerations are
relevant when considering the applicability of article 8 in the context of a
decision to prosecute. A decision to prosecute does not of itself involve a
lack of respect for the autonomy of the defendant but places the question
of determining his or her guilt before the court, which will itself be
responsible for deciding ancillary questions of bail or remand in custody
E
and the like.
The claim here was clearly for a positive act, causing excessive detention.
92 Finally, Lord Reed JSC dismisses Brooks v Comr of Police of the
Metropolis [2005] 1 WLR 1495 on the basis that it concerned police
behaviour which was merely insensitive and so not normally actionable,
F
even if it results in a psychiatric illness: para 60. But the starting point for
the Houses consideration of the case was that Mr Brooks had, as a key
witness to the fatal attack on Stephen Lawrence on 22 April 1993, su›ered
from a very serious post-traumatic stress disorder until the spring of 1998,
and that this had been severely exacerbated or aggravated as a result of the
polices failure to treat him lawfully: para 10. Lord Steyn said, at para 16, in
this connection that
G
In particular the matter must be considered on the basis that
Mr Brooks has su›ered personal injury (in the form of an exacerbation of
or aggravation of the post-traumatic stress disorder that was induced by
the racist attack itself) in consequence of the negligence of the o–cers and
that injury of this type was reasonably foreseeable.
H That being the basis on which the matter fell to be considered, the appellant
advanced the argument that Hills case could be distinguished. The House
disposed of that argument tersely as follows, at para 32:
The only suggested distinction ultimately pursued was that in Hills
case the police negligence was the indirect cause of the murder of the
768
(SC(E)) [2018] AC
Lord Mance DPSC
daughter whereas in the present case the police directly caused the harm A
to Mr Brooks. That hardly does justice to the essential reasoning in Hills
case. In any event, Calveley . . . Elguzouli-Daf . . . and Kumar v Comr of
Police of the Metropolis (unreported) 31 January 1995 . . . were cases of
alleged positive and direct negligence by the police. The distinction is
unmeritorious.
93 According to the Houses decision in Alcocks case [1992] 1 AC 310, B
what is necessary in order to recover damages for negligently caused
psychiatric injury is not only foreseeability, but also proximity. Both
requirements appear clearly to have been present in the Brooks case [2005]
1 WLR 1495. In the event, Lord Steyn also treated the third stage of the
Caparo test (fairness, justice and reasonableness) as applicable. But it is
clear that the House decided the case by reference to a general principle C
derived from the Hill, Calveley and Elguzouli-Daf cases, and not on the
basis of any general distinction between either physical and psychiatric
injury or acts or omission. Rather, it decided the case on the basis that,
outrageous negligence aside, the police owe no duty of care not to cause by
positive act or omissions harm to victims of serious crime, or witnesses to
serious crime, with whom they have contact; and it rejected categorically
any distinction between indirect causation of the murder of an innocent D
victim, due to failure properly to investigate past o›ences against other
victims (Hills case) and harm directly caused . . . to Mr Brooks: [2005]
1 WLR 1495, paras 18, 32.
94 What I think emerges from this examination of past authority is that
it is not possible to state absolutely that policy considerations may not shape
police or CPS liability in a context where the conduct of the police may E
perfectly well be analysed as positive, rather than simply as involving some
form of omission. It is at least clear that extended detention and psychiatric
injury, due to the polices or CPSs positive acts or omissions, will be treated
as outside any otherwise generally established category of liability for
negligence.
95 As to the present appeal, I also think that there was open to the law a
genuine policy choice whether or not to hold the police responsible on a F
generalised basis for direct physical intervention on the ground, causing an
innocent passer-by physical injury, in the performance of their duties to
investigate, prevent and arrest for suspected o›ending by some third
person(s). In my opinion, that policy choice should now be made
unequivocally in the sense indicated by Lord Reed JSC. In Hills case [1989]
AC 53, 59 Lord Keith stated that G
There is no question that a police o–cer, like anyone else, may be
liable in tort to a person who is injured as a direct result of his acts or
omissions. So he may be liable in damages for assault, unlawful arrest,
wrongful imprisonment and malicious prosecution, and also for
negligence.
H
Lord Keith then cited as instances where liability for negligence has been
established two authorities: Knightley v Johns [1982] 1 WLR 349 and
Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242.
96 Neither comes particularly close to the present case, and indeed, in
reasoning to some extent echoed in the present Court of Appeal decision, the
769
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Lord Mance DPSC
A Court of Appeal (Leveson and Toulson LJJ) in Desmond v Chief Constable

of Nottinghamshire Police [2011] PTSR 1369, identied the modied core
principle in Hill as meaning that: Absent special circumstances, the
police . . . do not . . . owe individual members of the public . . . a common
law duty of care in undertaking their operational duties of investigating,
detecting, suppressing and prosecuting crime: para 31. But it recognised
B
that the modied core principle in Hill may not apply in exceptional
circumstances at the margins: para 32. It gave as examples of where it
would not apply cases of negligent driving by the police and of assumption
of responsibility. It also identied as further examples the two cases
mentioned by Lord Keith.
97 As to those two cases, the former concerned police (mis)management
of the aftermath of a relatively mundane tra–c accident, by giving
C instructions to an o–cer to ride against the tra–c ow in a tunnel, as a result
of which he su›ered personal injury. The latter concerned police failure to
re-equip themselves with re-ghting equipment, before taking the drastic
step, with a view to forcing the intruders arrest, of ring an incendiary
canister into a building in which an intruder had broken with a gun. The
present case concerns in contrast a quite delicate operational decision
D involving co-ordination between four o–cers, with a view to the arrest of
suspected drug dealers, in a public place. It can be suggested that this raises
special considerations, negativing any duty of care. But in my view we should
not accept that suggestion. Rather we should now recognise the direct
physical interface between the police and the public, in the course of an arrest
placing an innocent passer-by or bystander at risk, as falling within a now
established area of general police liability for positive negligent conduct
E
which foreseeably and directly inicts physical injury on the public. On that
basis, I would also allow this appeal and restore the judges judgment.
LORD HUGHES JSC
The question of law

F 98 The general question of importance in this appeal is when the police
do or do not owe a legal duty of care to individuals in the course of
performing their public functions of investigating and preventing crime.
99 It is important that the question is posed in those terms. It may have
become a convenient shorthand to express the decisions of the House of
Lords and this court in Hill v Chief Constable of West Yorkshire [1989] AC
G 53, Brooks v Comr of Police of the Metropolis [2005] 1 WLR 1495, Smith v
Chief Constable of Sussex Police [2009] AC 225 and Michael v Chief
Constable of South Wales Police (Refuge intervening) [2015] AC 1732 in
terms of a rule of police immunity. That may not be surprising since Lord
Keith of Kinkel did at one point in Hills case refer to the police as immune
from an action of the kind there brought. Whether convenient or not, that
shorthand is misleading, as Lord Toulson JSC explained in Michaels case at
H
para 44. Whatever the answer to the question posed, the police do not enjoy
some immunity from liability which otherwise would arise. Like others,
however, they do not owe a duty of care to avoid harm or damage in every
situation where such harm or damage can be foreseen. The general rule of
law of tort is that the foreseeability of harm is a necessary but not a su–cient
770
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Lord Hughes JSC
condition for liability. So in all the many situations and relationships which A
may result in damage, the question becomes: when is the defendant under a
legal duty of care to the claimant to take reasonable steps to avoid it.
100 For the reasons very clearly set out by Lord Reed JSC at
paras 21—30 it is neither necessary nor appropriate to treat Caparo
Industries plc v Dickman [1990] 2 AC 605 as requiring the application of its
familiar three-stage examination afresh to every action brought. Where the B
law is clear that a particular relationship, or recurrent factual situation, gives
rise to a duty of care, there is no occasion to resort to the Caparo case, at
least unless the court is being invited to depart from previous authority.
101 The four cases of Hill, Brooks, Smith and Michael make it clear
that they do not touch on the liability of police o–cers if by positive
negligent act they cause physical harm to individuals or damage to property.
That is apparent from: (i) the approval in those cases of the decisions in C
Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242
(negligent use of a CS gas canister in an attempt to force an armed
psychopath from a shop in which he had gone to ground) and Knightley v
Johns [1982] 1 WLR 349 (negligent organisation of tra–c in an emergency
situation); and (ii) the explicit statement by Lord Keith in Hills case [1989]
AC 53, 59, approved in subsequent cases, that There is no question that a D
police o–cer, like anyone else, may be liable in tort to a person who is
injured as a direct result of his acts or omissions (although see below for
consideration of omissions).
102 There are other examples of recognition of the duty of care which
police o–cers owe not by positive negligent act to cause physical harm.
They include Marshall v Osmond [1983] QB 1034 (a car chase) and Ashley v
Chief Constable of Sussex Police (Sherwood intervening) [2008] AC 962 E
(where negligent shooting of a suspected criminal was conceded).
103 The principal cases, however, also contain explicit statements of
the vital policy considerations which impose limits on the duties of care
which the police owe to individuals when engaged in their public function of
investigating and preventing crime. The analysis begins with Lord Keith in
Hills case [1989] AC 53. With the express agreement of three other F
members of the court, and a concurring speech by the fth, he said at p 63:
That is su–cient for the disposal of the appeal. But in my opinion
there is another reason why an action for damages in negligence should
not lie against the police in circumstances such as those of the present
case, and that is public policy . . . Potential existence of such liability may
in many instances be in the general public interest, as tending towards the G
observance of a higher standard of care in the carrying on of various
di›erent types of activity. I do not, however, consider that this can be said
of police activities. The general sense of public duty which motivates
police forces is unlikely to be appreciably reinforced by the imposition of
such liability so far as concerns their function in the investigation and
suppression of crime. From time to time they make mistakes in the
H
exercise of that function, but it is not to be doubted that they apply their
best endeavours to the performance of it. In some instances the
imposition of liability may lead to the exercise of a function being carried
on in a detrimentally defensive frame of mind. The possibility of this
happening in relation to the investigative operations of the police cannot
771
(SC(E))
Lord Hughes JSC
A be excluded. Further it would be reasonable to expect that if potential

liability were to be imposed it would be not uncommon for actions to be
raised against police forces on the ground that they had failed to catch
some criminal as soon as they might have done, with the result that he
went on to commit further crimes. While some such actions might
involve allegations of a simple and straightforward type of failurefor
B
example that a police o–cer negligently tripped and fell while pursuing a
burglarothers would be likely to enter deeply into the general nature of
a police investigation, as indeed the present action would seek to do. The
manner of conduct of such an investigation must necessarily involve a
variety of decisions to be made on matters of policy and discretion, for
example as to which particular line of inquiry is most advantageously to
be pursued and what is the most advantageous way to deploy the
C available resources. Many such decisions would not be regarded by the
courts as appropriate to be called in question, yet elaborate investigation
of the facts might be necessary to ascertain whether or not this was so.
A great deal of police time, trouble and expense might be expected to
have to be put into the preparation of the defence to the action and the
attendance of witnesses at the trial. The result would be a signicant
D diversion of police manpower and attention from their most important
function, that of the suppression of crime. Closed investigations would
require to be reopened and retraversed, not with the object of bringing
any criminal to justice but to ascertain whether or not they had been
competently conducted.
Lord Templeman added, at p 65:
E
Moreover, if this action lies, every citizen will be able to require the
court to investigate the performance of every policeman. If the policeman
concentrates on one crime, he may be accused of neglecting others. If the
policeman does not arrest on suspicion a suspect with previous
convictions, the police force may be held liable for subsequent crimes.
The threat of litigation against a police force would not make a policeman
F more e–cient. The necessity for defending proceedings, successfully or
unsuccessfully, would distract the policeman from his duties. This action
is in my opinion misconceived and will do more harm than good.
104 In Brookss case [2005] 1 WLR 1495, para 28 Lord Steyn qualied
that part of what Lord Keith had said about the best endeavours of police
o–cers, saying that a more sceptical approach to the carrying out of all
G public functions was necessary. His qualication was shared by Lord
Bingham of Cornhill at paras 3 and 4 and by Lord Nicholls of Birkenhead at
para 6. But notwithstanding that reservation, Lord Steyn, with whom Lord
Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood fully
agreed, otherwise fully endorsed the reasoning of Lord Keith. At para 30 he
held that the core principle of Hills case had remained unchallenged for
H many years. He went on:
It is, of course, desirable that police o–cers should treat victims and
witnesses properly and with respect: compare the Police (Conduct)
Regulations 2004 (SI 2004/645). But to convert that ethical value into
general legal duties of care on the police towards victims and witnesses
772
(SC(E)) [2018] AC
Lord Hughes JSC
would be going too far. The prime function of the police is the preservation A
of the Queens peace. The police must concentrate on preventing the
Commission of crime; protecting life and property; and apprehending
criminals and preserving evidence . . . A retreat from the principle in
Hills case would have detrimental e›ects for law enforcement. Whilst
focusing on investigating crime, and the arrest of suspects, police o–cers
would in practice be required to ensure that in e contact with a potential B
witness or a potential victim time and resources were deployed to avoid
the risk of causing harm or o›ence. Such legal duties would tend to
inhibit a robust approach in assessing a person as a possible suspect,
witness or victim. By placing general duties of care on the police to
victims and witnesses the polices ability to perform their public functions
in the interests of the community, fearlessly and with despatch, would be
impeded. It would, as was recognised in Hills case, be bound to lead to C
an unduly defensive approach in combating crime.
As Lord Steyn pointed out, at para 19, there can be no doubt that Lord
Keiths analysis represented the alternative ground of decision for, and part
of the ratio decidendi of, Hills case.
105 In the same case, Lord Bingham, at para 4, said of the suggested
D
duties of care to witnesses which were advanced by the claimant,
But these are not duties which could be imposed on police o–cers
without potentially undermining the o–cers performance of their
functions, e›ective performance of which serves an important public
interest. That is, in my opinion, a conclusive argument in the
Commissioners favour.
E
And at para 5 Lord Nicholls held that These duties would cut across the
freedom of action the police ought to have when investigating serious
crime.
106 In Smith v Chief Constable of Sussex Police [2009] AC 225 Lord
Bingham of Cornhill dissented on the extent of the duty of care owed to
those who complained to the police about risks from another identied F
person and advanced what he termed a liability principle recognising a
duty of care in narrow circumstances. But notwithstanding that opinion, he
reviewed the policy considerations voiced by Lord Keith in Hills case and by
the House in Brookss case and, except for the reservation entered in
Brookss case which is explained above, he did not question them: see
paras 48—52. The majority of the House expressly endorsed the policy
considerations subject to the same reservation. G
107 At para 74 Lord Hope of Craighead addressed Lord Binghams
opinion that the limited liability which he would have imposed was not
inconsistent with the policy factors, and that the observations in the Hill and
Brooks cases were to be read in the context of the duties there contended for.
He held that they were not so limited, at paras 74—76:
74. . . . In my opinion however it is clear from Lord Steyns opinion, H
read as a whole, that he was laying down a principle of public policy that
was to be applied generally. In para 22 he referred to his own judgment in
Elguzouli-Daf v Comr of Police of the Metropolis [1995] 1 QB 335. That
was, as he said, a di›erent case altogether, as it raised the question
773
(SC(E))
Lord Hughes JSC
A whether the Crown Prosecution Service (CPS) owed a duty of care to

those whom it was prosecuting. But he relied on the case by analogy. In
holding in Elguzouli-Daf that policy factors argued against the
recognition of a duty of care owed by the CPS to those whom it
prosecutes, he said this at p 349: While it is always tempting to yield to
an argument based on the protection of civil liberties, I have come to the
B
conclusion that the interests of the whole community are better served by
not imposing a duty of care on the CPS. In my view, such a duty of care
would tend to have an inhibiting e›ect on the discharge by the CPS of its
central function of prosecuting crime. It would in some cases lead to a
defensive approach by prosecutors to their multifarious duties. It would
introduce a risk that prosecutors would act so as to protect themselves
from claims of negligence.
C 75. The phrase the interests of the whole community was echoed in
the last sentence of the passage which I have quoted from Lord Steyns
opinion in Brooks. There is an echo too in Brooks of the warning against
yielding to arguments based on civil liberties: see the rst sentence of that
quotation where he warns against a retreat from the core principle. The
point that he was making in Brooks, in support of the core principle in
D Hill, was that the principle had been enunciated in the interests of the
whole community. Replacing it with a legal principle which focuses on the
facts of each case would amount, in Lord Steyns words, to a retreat from
the core principle. We must be careful not to allow ourselves to be
persuaded by the shortcomings of the police in individual cases to
undermine that principle. That was the thing that he was warning against,
because of the risks that this would give rise to. As Ward LJ said in
E
Swinney v Chief Constable of Northumbria Police Force [1997] QB 464,
487, the greater public good outweighs any individual hardship.
A principle of public policy that applies generally may be seen to operate
harshly in some cases, when they are judged by ordinary delictual
principles. Those are indeed the cases where, as Lord Steyn put it, the
interests of the wider community must prevail over those of the individual.
F 76. The risk that the application of ordinary delictual principles
would tend to inhibit a robust approach in assessing a person as a possible
suspect or victim, which Lord Steyn mentioned in the last sentence of the
passage that I have quoted from his opinion in Brooks, is directly relevant
to cases of the kind of which Smiths case is an example . . . Police work
elsewhere may be impeded if the police were required to treat every report
G from a member of the public that he or she is being threatened with
violence as giving rise to a duty of care to take reasonable steps to prevent
the alleged threat from being executed. Some cases will require more
immediate action than others. The judgment as to whether any given case
is of that character must be left to the police.
108 At para 89 Lord Phillips of Worth Matravers CJ observed that
H public policy has been at the heart of consideration whether a duty of care is
owed by police o–cers to individuals. After reviewing the policy factors he
concluded at para 97:
. . . I do not nd it possible to approach Hill and Brooks as cases that
turned on their own facts. The fact that Lord Steyn applied the decision
774
(SC(E)) [2018] AC
Lord Hughes JSC
in Hill to the facts of Brooks, which were so very di›erent, underlines the A
fact that Lord Steyn was indeed applying a core principle that had been
unchallenged . . . for many years. That principle is, so it seems to me,
that in the absence of special circumstances the police owe no common
law duty of care to protect individuals against harm caused by criminals.
The two relevant justications advanced for the principle are (i) that a
private law duty of care in relation to individuals would be calculated to B
distort, by encouraging defensive action, the manner in which the police
would otherwise deploy their limited resources; (ii) resources would be
diverted from the performance of the public duties of the police in order
to deal with claims advanced for alleged breaches of private law duties
owed to individuals.
109 At para 108 Lord Carswell said: C
. . . The factor of paramount importance is to give the police
su–cient freedom to exercise their judgment in pursuit of their objects in
work in the public interest, without being trammelled by the need to
devote excessive time and attention to complaints or being constantly
under the shadow of threatened litigation. Over-reaction to complaints,
resulting from defensive policing, is to be avoided just as much as failure D
to react with su–cient speed and e›ectiveness. That said, one must also
express the hope that police o–cers will make good use of this freedom,
with wisdom and discretion in judging the risks, investigating complaints
and taking appropriate action to minimise or remove the risk of threats
being carried out.
110 Lastly, Lord Brown of Eaton-under-Heywood added, at E
paras 131—133
131. Fourthly, some at least of the public policy considerations which
weighed with the House in Hill and Brooks to my mind weigh also in the
present factual context. I would emphasise two in particular.
132. First, concern that the imposition of the liability principle upon
the police would induce in them a detrimentally defensive frame of mind. F
So far from doubting whether this would in fact be so, it seems to me
inevitable. If liability could arise in this context (but not, of course, with
regard to the polices many other tasks in investigating and combating
crime) the police would be likely to treat these particular reported threats
with especial caution at the expense of the many other threats to life, limb
and property of which they come to learn through their own and others G
endeavours. They would be likely to devote more time and resources to
their investigation and to take more active steps to combat them. They
would be likely to arrest and charge more of those reportedly making the
threats and would be more likely in these cases to refuse or oppose bail,
leaving it to the courts to take the responsibility of deciding whether those
accused of making such threats should remain at liberty. The police are
inevitably faced in these cases with a conict of interest between the H
person threatened and the maker of the threat. If the police would be
liable in damages to the former for not taking su–ciently strong action
but not to the latter for acting too strongly, the police, subconsciously or
not, would be inclined to err on the side of over-reaction. I would regard
775
(SC(E))
Lord Hughes JSC
A this precisely as inducing in them a detrimentally defensive frame of

mind. Similarly with regard to their likely increased focus on these
reported threats at the expense of other police work.
133. The second public policy consideration which I would
emphasise in the present context is the desirability of safeguarding the
police from legal proceedings which, meritorious or otherwise, would
B
involve them in a great deal of time, trouble and expense more usefully
devoted to their principal function of combating crime. This was a point
made by Lord Keith of Kinkel in Hill and is of a rather di›erent character
from that made by Lord Steyn in para 30 of his opinion in Brookssee
para 51 of Lord Binghams opinion. In respectful disagreement with my
Lord, I would indeed regard actions pursuant to the liability principle as
diverting police resources away from their primary function. Not
C perhaps in every case but sometimes certainly, the contesting of these
actions would require lengthy consideration to be given to the
deployment of resources and to the nature and extent of competing tasks
and priorities.
111 In Michaels case [2015] AC 1732, para 121 Lord Toulson JSC was
inclined to accord force to criticism of the fear of defensive policing. But he
D held that it was possible to imagine that liability might lead to police forces
changing their priorities, and that it was hard to see it as in the public interest
that the determination of priorities should be a›ected by the risk of being
sued. He added that the one thing of which any court could be sure is that
the payment of compensation would have to come from police budgets, at
the expense of spending on policing unless an increase in budgets from the
E public purse were to ensue.
112 It should be acknowledged that it is sometimes asserted that that
part of the policy considerations which related to the danger of defensive
policing lacks hard evidence. That may technically be so, since there has not
existed the kind of duty of care which would test it in practice. But like Lord
Brown in Smith v Chief Constable of Sussex Police [2009] AC 225 I for my
part would regard that risk as inevitable. It can scarcely be doubted that we
F see the consequences of defensive behaviour daily in the actions of a great
many public authorities. I do not see that it can seriously be doubted that the
threat of litigation frequently inuences the behaviour of both public and
private bodies and individuals.
113 However that may be, the several statements of the policy
considerations, especially in three di›erent decisions of the House of Lords,
G are simply too considered, too powerful and too authoritative in law to be
consigned to history, as I do not understand Lord Reed JSC to suggest that
they should be. Nor do I see it as possible to treat them as no more than
supporting arguments. As all of them, and especially the speech of Lord
Hope JSC set out at para 107 above, make clear, the statements are intended
as ones of general principle. No doubt Hills case was decided at a time
when Anns v Merton London Borough Council [1978] AC 728 was
H
understood to provide the test for the existence of a duty of care. But the
error of the Anns case was exposed at the latest in 1991 in Murphy v
Brentwood Council [1991] 1 AC 398, whilst the Brooks and Smith cases
were decided in 2005 and 2008 respectively. In any event, the error of the
Anns case lay chiey in its e›ective imposition of an often impossible burden
776
(SC(E)) [2018] AC
Lord Hughes JSC
on a defendant to demonstrate that public policy ought to negate the A

existence of a duty of care. The relevance of considerations of public policy,
such as those so fully adumbrated in the Hill, Brooks and Smith cases, and
the fact that they may indeed demonstrate that a duty of care is not owed,
remains unchanged by the di›erent formulation in the Caparo case.
114 In Michaels case [2015] AC 1732, para 97 Lord Toulson JSC
helpfully brought into the analysis the general reluctance of English law B
to impose liability in tort for pure omissions. Smith v Littlewoods
Organisation Ltd [1987] AC 241, to which he referred, is a good example.
There, the claimant suggested that the occupiers of a disused cinema,
awaiting demolition and reconstruction as a shop, owed a duty to exclude
vandals from getting in, so that they were liable to neighbours when the
vandals started a re which spread to adjoining properties. That was, no
doubt, a case of pure omission, and was so analysed by Lord Go› of C
Chieveley although not by the majority of the House of Lords, through Lord
Mackay of Clashfern. It is clear that the reluctance of the common law to
impose liability in tort for pure omissions is another reason why the police
do not owe a duty of care to individuals who turn out to be the victims of
crime (as in Hill or Smith) or to witnesses (as in Brookss case) or to suspects
(as in Calveley v Chief Constable of Merseyside and Elguzouli-Daf). But D
analysis in terms of omissions cannot be the only, or su–cient, reason why
such duties of care are not imposed, nor why there is very clearly no duty
owed to individuals in the manner in which investigations are conducted.
115 There are at least two reasons why this is so. First, the rule against
liability for omissions is by no means general. In Smith v Littlewoods
Organisation Ltd Lord Go› identied at any rate several situations where
E
such liability is imposed. One is where there has been an assumption
of responsibility towards the claimant. The law readily nds such an
assumption in many common situations, such as employment, teaching,
healthcare and the care of children, and imposes liability for omitting to
protect others. It could equally readily do so in the case of police o–cers
with a general public duty to protect the peace, but it does not. Another was
epitomised by Goldman v Hargrave [1967] 1 AC 645 and by Thomas F
Graham & Co Ltd v Church of Scotland General Trustees 1982 SLT (Sh Ct)
26, a case very similar to Littlewoods where the occupier knew of previous
incursions by third parties and where Lord Go› accepted that liability was
rightly imposed for omission to keep them out. If the occupation of land is
treated as imposing liability for an omission, the law could, and might, have
said that the same applies to police o–cers where they are aware of the risk G
posed by (or to) those they are investigating, but it does not.
116 For the same reasons, the question whether a statutory public duty
gives rise to a private duty or not is a uid one. Stovin v Wise [1996] AC 923
and Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR
1057 are examples where no private duty of care was held to exist. Barrett v
Eneld London Borough Council [2001] 2 AC 550, decided after Stovin v
H
Wise, accepted at least in principle the possibility of such a duty in relation to
the di›erent statutory scheme there in question.
117 Secondly, there is no rm line capable of determination between a
case of omission and of commission. Some cases may fall clearly on one side
of the line, and Hills case may have been one of them. But the great
777
(SC(E))
Lord Hughes JSC
A majority of cases can be analysed in terms of either. Michaels case could be

said to be a case of omission to respond adequately to the 999 call. But it
was argued for the claimant as a case of a series of positive acts, such as, for
example, misreporting the complaint when passing it from one police force
to another. Barrett v Eneld London Borough Council was a case of mixed
acts (allegedly negligent placements) and omissions (to arrange adoption).
B
Phelps v Hillingdon London Borough Council [2001] 2 AC 619 similarly
involved allegedly negligent examination, also a positive act.
118 The ultimate reason why there is no duty of care towards victims,
or suspects or witnesses imposed on police o–cers engaged in the
investigation and prevention of crime lies in the policy considerations
examined above and, in the end, in the clear conclusion, as expressed by
Lord Hope in Smith (see para 107 above) that the greater public good
C requires the absence of any duty of care.
119 Likewise the policy considerations will be directly relevant to any
suggestion that a duty of care exists towards individuals such as victims,
witnesses or suspects via the route of foreseeable risk of psychiatric harm.
The law remains uncertain about when a claimant can properly be regarded
as a primary or a secondary victim for the purposes of recovering damages
D for psychiatric harm: see Frost v Chief Constable of South Yorkshire Police
[1999] 2 AC 455, McLoughlin v Jones [2002] QB 1312, per Hale LJ, and
Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. But it
is clear that no duty of care towards victims of crime, witnesses or suspects
can be erected on the back of foreseeability of psychiatric harm, and the
reason clearly lies in the policy considerations.
120 Thus whilst there remains a duty of care imposed on police o–cers
E not by positive action to occasion physical harm or damage to property
which ought reasonably to be avoided, there is no duty of care towards
victims, witnesses or suspects in the manner of the investigation of o›ences
or the prevention of crime. That also means that there is no duty of care to
protect individuals from harm caused by the criminal acts of third parties.
121 Of course, where action is brought on the basis of physical harm
F done by positive act of the police, it will succeed if but only if negligence is
proved. As Lord Reed JSC explains at para 75, policing may sometimes
involve unavoidable risk to individuals. It may very often involve extremely
delicate balancing of choices. Crowd control, hostage situations, violent
outbreaks of crime and the allocation of scarce resources where there are
large numbers of persons with the potential to o›end, even at the terrorist
level, are simply examples. Sometimes decisions may have to be made
G
under extreme pressure; at other times they may remain very di–cult
notwithstanding time for analysis, and there may be a high level of risk that
they turn out to be wrong. The question is always not whether, with
hindsight, the decision was wrong, but whether in all the circumstances it
was reasonable.
H The present case

122 I agree that the present case is one of positive act, namely arresting
the suspect, which directly caused physical harm. It matters not that the
suspect was the rst to be in physical contact with the claimant given that the
collision with her was by him plus two of the policemen.
778
(SC(E)) [2018] AC
Lord Hughes JSC
123 I confess that I have pondered hard about the nding of negligence. A
That the suspect might run away was known, but the limited risk that he not
only would do so, but also would cannon into a pedestrian if he did, had to
be balanced against the duty to e›ect an arrest promptly. Many might
regard the decision when to e›ect the arrest as a marginal one. But it is
important that appellate courts do not second guess trial judges who have
had the opportunity to hear the witnesses in person, as well as to examine B
the CCTV in the light of the way the case is argued. It does not seem to me
that even if one were to entertain doubts about how one might oneself have
decided the issue, it can be right to displace the nding of the trial judge
unless there is error of principle. It is impossible to say that the judge was
not entitled to attach the signicance he did to the fact that Mr Willan had
lost sight of the claimant at the moment he moved in.
124 In those circumstances I would allow the appeal and restore the C
nding of the trial judge. The case must be remitted to the court of trial for
the still outstanding assessment of damages.
Appeal allowed.
Case remitted to judge for assessment
of damages.
D
SHIRANIKHA HERBERT, Barrister

736 Robinson V Chief Constable of West Yorkshire Police

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736

Robinson v West Yorkshire Chief Constable (SC(E))

Robinson v Chief Constable of West Yorkshire Police

Negligence Duty of care Police Police o–cers causing injury to passer-by

Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15; [2004] A

The following additional case was cited in argument:

A APPEAL from the Court of Appeal

Nicholas Bowen QC, David Lemer and Duncan Fairgrieve (instructed by

Jeremy Johnson QC and Ian Skelt (instructed by Head of West Yorkshire A

The court took time for consideration.

8 February 2018. The following judgments were handed down. G

LORD REED JSC (with whom BARONESS HALE OF RICHMOND PSC

A 2 The principal question which has to be decided in this appeal is

The proceedings before the recorder A

A 14 The recorder held, however, that the decision in Hill v Chief

A whether a duty of care should be recognised in a novel type of case. It is the

(2) The police A

A Barrett v Eneld London Borough Council [2001] 2 AC 550 and Phelps v

obligations. Although the decision was overruled in Murphy v Brentwood A

(ii) The police in particular

2 AC 455, in which police forces, although not technically employers, have A

A not, therefore, generally under a duty of care to provide a benet to

54 In relation to that issue, the decision in Hills case has now to be A

A care to avoid causing reasonably foreseeable physical injury in the course of

A 64 In Smith v Chief Constable of Sussex Police [2009] AC 225, the

witnesses or those who are prosecuted, a common law duty of care in A

A exists, together with a consideration of existing principles and of the need

A (3) Is this case concerned with an omission or with a positive act?

LORD MANCE DPSC

A concern an established category of liability. But, why not? Combat

A Court of Appeal (Leveson and Toulson LJJ) in Desmond v Chief Constable

LORD HUGHES JSC

The question of law

A be excluded. Further it would be reasonable to expect that if potential

A whether the Crown Prosecution Service (CPS) owed a duty of care to

A this precisely as inducing in them a detrimentally defensive frame of

on a defendant to demonstrate that public policy ought to negate the A

A majority of cases can be analysed in terms of either. Michaels case could be

H The present case

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A whether the Crown Prosecution Service (CPS) owed a duty of care to