police immunity

Question 1

summary of the arguments

Answer 1

lord reed - cases cited can be explained on other grounds

lord hughes - reed placed too much weight on the role played by omissions and had udnerplayed the role of public policy

Question 2

Hill v Chief Constable of south yorkshire

Answer 2

the police don’t have a general duty unless such a failure creates an exceptional additional risk and there is a proximity between the officer and potential victim
as a matter of public policy the police were immune from allegations of negligence arising from their investigation and supression of crime

Question 3

Lord keith of kinkel 5 issues of duty of care

Answer 3

1. is there potentially a duty of care situation
2. if there is, is it reasonably forseeable that a careless act or omission will injuriously affect another person either physically or financially
3. if it is reasonably forseeable, there is potentiallt liabiltiy unless for reasons of public policy the duty is eliminated or restricted
4. unless the case is a class case and the class is too wide and too vague and too indeterminate
5. unless the damage is too remote for instance in a novus actus interveniens.

Question 4

was hill an act or omission

Answer 4

the calls falls into the general rule that A is not liable for the acts of B causing damage to C.
A duty could arise if there is an exceptional duty between A and B

Question 5

what did hill hold on forseeability of harm

Answer 5

forseeabiltiy of likely harm is not in intself a sufficient test of liability of negligence.
A futher ingredient is normally needed to establish the requiste proximity of relationship between plaintiff and defendant

Question 6

how is caparo interpreted

Answer 6

since caparo, approach a novel claim proceeding cautiously from establsihed situations of liability and weighing up factors for and against liability

unlikely that the brief formula in caparo could ever hope to resolve this question - lord bridge in his speech meerly calls them convenient labels

robinson held caparo to be about reigning in the expansionary tendencies of negligence

Question 7

Hallet LJ

Answer 7

an attempt by the house of lords to impose a degree of control over the growth of the law of negligence generally

Question 8

finding in robertson

Answer 8

questioned whether the existence of care always depended on the caparo test - found that caparo only applied in novel situations
depended on the application of established legal principles
the general law of tort applied to the police like they did ayone else
did not normally apply for omissions
the reasonable forseeable risk of injury in attempting an arrest when pedestrians were close by was enough to create a duty of care
duty is always what is reasonable in the circumstances

Question 9

what was established about orthodox

Answer 9

primacy was given to orthodoc tort laws, rather the tendencies to determine what is fair just and reasonable
the claim of return to orthodoxy was not challenged by lord mance or lord reed

Question 10

the finding in regards to policy factors

Answer 10

polciy factors should only be applied in novel situations

Question 11

the court of first instance

Answer 11

that they were negligent but immune under hill

Question 12

court of appeal

Answer 12

lady hallet LJ rigidly applied caparo, duty was precluded on the basis of policy considerations and public interest considerations

Question 13

the significance of robertson

Answer 13

confirms public auhtorities will be held to the same standard
confirms that litigants will struggle to bring succesful negligence claims where they suffer a loss as a result of police investigations, omissions, namely the failure to apprehend a perpetrator

Question 14

what balance does lord reed say is achieved through the proper understanding of caparo

Answer 14

caparo thus achieves a balance between legal certainty and justice
in the ordinary run of cases, courts consider what has been decided previously and follow precedents
it advocated an incramental approach rooted in precedent.
caparo was only to be revisited in novel situations.

Question 15

did lord reed hold it to be an act or omission

Answer 15

it was a positive act not an omission

Question 16

Lord reeds holding on micheal v chief constable

Answer 16

it was enough to show no duty of care arose -there was no need to rely on defensive policing

Question 17

lord reed on stovin v wise

Answer 17

the key decisions in which the the confusion from anns was “finally dissipated” and the law on omissions liability returned to orthodoxy.

Question 18

what 2 types of tortious liability were identified

Answer 18

1. regular negligence liability that arise from any person
2. negligence liability to individual members of the public that arises in performance by the police of their investigative functions for failure to protect members of the public from harm caused by criminals

Question 19

ratio put forward by lord reed

Answer 19

public authorties are siubject to the same tortious liabilites as private individuals. statutory duties have no part to play in the analysis.

Question 20

analysis of lord reed

Answer 20

1. where there is a line of authority establishing that a duty of care is owed or not owed, the courts must follow that authority. the decision to recognise a duty is based on considerations of justice and reasonableness.
2. where the supreme court is invited to depart from an established line o f authority, it can appropriatly examine what is fair just and reasonable
3. where there is a novel case in which the existing authorities do not provide an answer on whether there is a duty of care exists, the courts must develop the law “incramentally and by analogy with established authority”

Question 21

the general rule from hill

Answer 21

The general rule that A is not liable for the Acts of B causing damaged to C. this would only arise if there was a special relationship between A and B.

Question 22

court of appeal interpretation in robinson

Answer 22

the hill principle is designed to prevent defensive policing and better protect the public. It would fundamentally undermine that objective to make the police liable for direct acts but not indirect acts. It would cause the police to avoid positive action for fear of being sued”

Question 23

lord bridge in caparo

Answer 23

calls the test convenient labels

Question 24

test in caparo

Answer 24

Harm must be reasonably forseebale as a result of the defendants concut
The parties must be in relationship of proximity
It must be fair, just and reasonable to impose liability.

Question 25

lord mance

Answer 25

- Significance for the dissent was the role of public policy – it was primarily public policy consdierations that shaped the denial of a duty of care owed by the police to the public in the investigation and suppression of crime. - Felt it was not a case in which the courts should interfere with the judges decision. - Critical of lord reed in regards to the analysis of smith v ministry of defence – lord reed regarded it as not being within an established category of immunity. Should be regareded as a general conclusion that it is not fair, just or reasonable to regard the crown or its officers, 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 act of war” - Policy negligence cases could not be satisfactorily understood by using the acts/ omissions distinction alone. - In recognising the existence of a generalised duty in particular cisrumstnaces, are making policy choices.

Question 26

Lord hughes

Answer 26

- Agrees with the submission of lord reed that Caparo is only to be used in novel circumstances - Do not see that it can seriously be doubted that the threat of litgation frequently influences the behaviour of both public and private bodies and individuals - The omissions principle was not the only or sufficient reason for absence of police liability – policy considerations were necessary to bolster that conclusion.