England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT Of JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LIVERPOOL DISTRICT REGISTRY
(MR. JUSTICE HODGSON)

		Royal Courts of Justice
		16th February 1990

LORD JUSTICE GLIDEWELL: The appellant, the defendant in the court below, was at the material time the Chief Constable of the Merseyside police. By a writ issued on 19th June 1986 the plaintiff, Mr. Alexandrou, claimed damages for the negligence of police officers in the Merseyside police, for which the defendant was responsible under Section 48 of the Police Act 1964. Before the hearing, damages were agreed subject to liability, in the sum of £7,500. After a hearing in Liverpool in December 1988, Hodgson J. on 17th February 1989 in Birmingham gave judgment for the plaintiff in that sum. The defendant now appeals against that judgment.

The Pleadings

The statement of claim alleged that at the material time the plaintiff occupied a retail clothing store known as "Ziggys at 5 Borough Pavement, Grange Precinct, in Birkenhead. At that shop the plaintiff had installed a burglar alarm system which, when activated, raised the alarm at the Mortimer Street police station, Birkenhead. Paragraphs 4 and 5 of the statement of claim read as follows:

"4. At, or about, 7 pm on 26th January 1986 a person or persons unknown entered the said clothing store and in so doing activated the burglar alarm at the Mortimer Street police station and stole therefrom a large quantity of clothing owned by the plaintiff in consequence whereof the plaintiff has suffered loss and damage."

"5. The said loss and damage was caused through the

negligence of the defendant, his servants, or agents.

"PARTICULARS OF NEGLIGENCE

The defendant, his servants, or agents, were negligent in that they:

a) Failed once the burglar alarm system was activated at the police station to attend with reasonable expedition thereafter at the said clothing store.

b) Failed in the circumstances to take any or any adequate precautions so as to discover the cause of the burglar alarm being so activated.

c) Failed to heed or act upon the warning given by the burglar alarm.

d) Assumed without any, or any proper enquiry, that the activation of the burglar alarm was a false alarm.

e) Failed with any, or reasonable expedition, to contact the plaintiff or the key-holder namely David McCarthy,"

The plaintiff claimed that by reason of the alleged negligence he had suffered the loss and damage alleged. Paragraph 3 of the defence read as follows:

"The defendant admits that at about 19.20 hours on 26 January 1986 the internal alarm at the said premises was activated and as a result the alarm was raised with the Merseyside police. The defendant denies that the said alarm was activated by a person or persons entering the said premises."

The paragraph continued with further allegations of fact with which I will deal when I come to summarise the evidence.

The defence denied that the defendant owed the plaintiff a duty of care in the circumstances alleged in the statement of claim, denied the allegations of negligence, and further denied that any loss or damage was caused by the negligence of himself or his servants or agents. Thus the issues before the judge were formulated.

The Evidence

The evidence before the judge can be summarised as follows. The Grange Precinct in Birkenhead is a modern shopping precinct. The lockup shop occupied by the plaintiff was one of a row of shops at first floor level in the Precinct. The front of the shop gave access to a pedestrian street. In order to reach the rear of the shop without going through the shop itself it was necessary to go along the pedestrian street, down a flight of steps to the ground level below, into a service tunnel and along a passage, up a further flight of steps and en to a walkway which ran along the back of the shops at first floor level. At the back of the plaintiff's shop there was a fire door which gave access to the walkway and a transom window some feet above the level of the walkway.

The burglar alarm system installed at the plaintiff's shop comprised an exterior alarm bell; an interior alarm bell, situated towards the rear of the premises; and a mechanism which when the alarm was activated sent a 999 telephone call to the police station which, when answered, delivered a recorded message indicating that the alarm had been activated at the premises in question. If the exterior alarm bell were removed, the 999 call would be activated. About four minutes later, the inside bell would start ringing. That would continue ringing indefinitely unless either it were turned off, or the control panel for the system was damaged, or there was some failure of power to the inside bell.

At 19.20 hours on Sunday 26th January 1986, the burglar alarm at the plaintiff'3 shop was activated, and the 999 call was received at the police control room. At that time WPC Thompson was on duty in Borough Pavement, a little distance from the plaintiff's shop. She heard a burglar alarm begin to ring, but at first did not know in which shop it was situated. She spoke to the control room at 19.23 hours, and was informed that the alarm was ringing in the plaintiff's shop. She went to the front of the shop, and said that she could see no signs of disturbance. She did not observe the burglar alarm on the exterior of the premises. Almost immediately afterwards, she was joined by PC William Smith, who had been on patrol nearby. He went apparently to the rear of the premises, and then returned saying, as he subsequently said in evidence, that he had checked the rear of the premises and found nothing wrong. WPC Thompson reported this to control at 19.24 hours. Shortly after this WPC Thompson went off duty.

The story was then taken up by PC Smith. He said in evidence that after he had met WPC Thompson at the front of the shop he went by the route I have described to the rear. He gave evidence in detail about the route he took, and said that he inspected the rear of the premises, including both the door and the window above. He also checked the rear of every other shop along that walkway. He found that everything was secure. He was asked by the judge whether he could hear the alarm from the back of the shop, and after hesitating he replied that he could not remember. He returned to the front of the shop, where WPC Thompson still was, and saw no sign that there had been an alarm bell attached to the front.

PC Smith said that thereafter he gave "Ziggys" shop passing attention. When asked what he meant by that phrase he said:

"During the course of duty if I'm asked to give passing attention or I decide to give passing attention to a shop, I check that particular attention is given to a shop that is particularly open to be burgled or damaged; therefore it gets more attention that the rest of the Precinct. If the alarm is also sounding on the premises then it's much easier to break in without causing undue alarm. It is much easier to break into premises that are alarmed and the alarm is sounding, and the police are aware that the alarm is sounding but are not there. It would raise no undue suspicion because the alarm is already sounding."

Thereafter he said that on a number of occasions he went back to "Ziggys", but he explained that by this he meant that he went on several occasions during the course of his patrol to inspect the front of the shop which, on each occasion, he found secure. At about 9.30 pm he visited the shop and realised that the alarm bell inside had stopped ringing. He then went to the rear of the shop and said that he again found it secure. He reported the fact that the alarm bell had stopped ringing to control, who noted that message as being received at 21.26 hours.

Meanwhile, the police had been trying to make contact with the person holding the key of the shop. They telephoned a Mrs Fitzgerald, who told them that she no longer had the key, and gave them the name and address of Mr. McCarthy. He was not on the telephone. A police patrol went to that address, which was a large house let in small flatlets. The police officers on the patrol gave evidence that they rang the bell of each of the flatlets, and banged on the doors, but gained no reply. At that point they were called away to another more urgent task, and therefore no contact was made with Mr McCarthy that night.

On the following morning the plaintiff went to his shop. When he went inside he found that it was in disarray and all the clothes which had been in stock on the Saturday, 36 hours before, had been removed. The control panel of the burglar alarm had been ripped off the wall. The transom window was broken, and the bars protecting it had been drawn apart. The fire escape door had been smashed so as to allow access to, or egress from, the premises. The cover of the fire alarm bell on the exterior of the premises and the bell inside had been completely removed.

The judge's findings of fact

The learned judge did not believe PC Smith when that officer said that at about 19.23 hours he went to the rear of the shop and checked it and found everything secure. The judge's reasons for not believing the officer were his hesitation in answer to the question whether he heard the alarm bell from the back, and the fact that according to the recorded times he had both gone to and returned from the back of the shop in the course of one minute, i.e. between 19.23 and 19.24 hours, which the judge found was not possible.

Moreover, the judge did not believe that PC Smith had again visited the rear of the premises when he realised that the bell was not ringing at 21.26 hours, nor did he accept that at that stage the rear of the premises was undamaged and secure.

The judge accepted the evidence of the plaintiff as to the conditions he found on the following morning.

The judge found that it was highly probable that the

burglary had happened as follows:

"Shortly before 21.26 hours entry was made through the window, the bars being forced apart. The burglars then stopped the bell ringing by pulling the panel away from the wall. The window would be an unsatisfactory means of egress while carrying several thousand pounds worth of goods from the shop to, no doubt, a waiting vehicle. The fire door was therefore smashed open from the inside and the loot removed."

He rejected as unlikely to have happened the suggestion that the bell might have stopped of its own accord and the burglary might have been committed much later.

The judge then said (at page 7(B) of the transcript of his judgment):

"If this reconstruction is correct then it follows that, at the time that PC Smith says that he inspected the rear of these premises shortly after 21.26 hours? the window at least had been smashed and entry gained. I think PC Smith is probably telling me the truth when he says he did visit the front of the premises quite frequently, in which case he probably realised that the bell had stopped very shortly after it did stop. At that time therefore the burglars would probably not have begun to remove the goods; they were probably in the process of breaking down the fire door.

"It seems clear to me therefore that, had PC Smith done that which he plainly ought to have done, this burglary, or rather the theft of the goods, would have been prevented."

The judge then turned to consider whether the police had also been negligent in failing to find the key-holder, Mr. McCarthy. In the light of the evidence he had heard, which I have summarised above, he said that the officers who went to look for Mr. McCarthy did nothing wrong and were in no way careless. Thus in respect of the allegation of negligence in paragraph 5(e) of the statement of claim the judge found for the defendant on the facts.

The judge's conclusions on the law

The learned judge reminded himself that in order to succeed in an action based on the tort of negligence, a plaintiff has to establish three elements, namely:

i) that the defendant owed him a duty of care in the circumstances; and

ii) that the defendant or his servant or agent had acted in breach of that duty; and

iii) that the plaintiff had suffered damage as a consequence of that breach.

The judge commented that it was in establishing that the defendant owed him a duty of care that the plaintiff was presented with "his greatest obstacle to success". The judge then gave lengthy and detailed consideration to the authorities governing this question. He held that in all the circumstances the police did owe the plaintiff a duty of care. In the passage from his judgment which I have quoted above, the judge had in effect already concluded that if the police did owe the plaintiff a duty of care, PC Smith was in breach of that duty and his breach caused the plaintiff's loss, i.e. in the sense that but for the constable's failure, the theft of the goods would have been prevented.

Submissions

The major argument before us was also on the difficult question whether in the circumstances such as those of the present case the police do owe to a shopkeeper, such as the plaintiff, p duty of care, or more narrowly whether they owed such a duty to this particular plaintiff in the particular circumstances. However, Mr. Leveson for the appellant also submits that even if the police did owe such a duty, and if PC Smith was in breach of that duty, on the evidence before him the judge was not entitled to conclude, as he did, that the breach caused the loss suffered by the plaintiff. I shall consider these submissions under these two heads. Before I do so, however, there is a preliminary point which must be made.

The allegation in the statement of claim was that the burglar or burglars entered the plaintiff's shop "at or about 7 pm on 26 January 1986 ... and in so doing activated the burglar alarm . ..". However, the judge found that entry to the premises was made at, or shortly before, 21.26 hours. The judge did not believe that PC Smith visited the rear of the premises and checked that they were secure at about 19.23 hours, and thus found in effect that if the police did owe the plaintiff a duty of care arising out of the activation of his burglar alarm system, PC Smith was in breach of that duty. Nevertheless from the judge's finding that the burglars did not enter at this time, it follows that this breach of itself did not cause the plaintiff any loss. The breach upon which the judge must have been basing his conclusion that the defendant was liable was the constable's failure, as the judge found, to revisit the rear of the premises at about 21.26 hours when he realised that the alarm bell was not ringing, thus allowing the burglars to proceed with their theft of the goods undisturbed.

This allegation was not part of the plaintiff's pleaded case, and the judge did not require the plaintiff's counsel (as with respect I believe he should have done) to amend his statement of claim so as to formulate his case in this way. It is thus not clear either from the pleadings, nor indeed from the express words of what is otherwise a careful and detailed judgment, what exactly was the ambit of the duty of care which the judge held the defendant owed to the plaintiff, of which PC Smith was found to be in breach.

I assume that the duty of care which the judge held the police owed to the plaintiff can be expressed as a duty:

a) Once the burglar alarm was activated at the police station to inspect the plaintiff's shop as soon as was reasonably possible;

b) to take reasonable steps to ascertain whether there was any sign of unauthorised entry to the premises, and if there was none;

c) to continue to inspect the shop with reasonable frequency; and

d) once the burglar alarm had stopped ringing to inspect again with reasonable care to ascertain whether there was any sign of unauthorised entry.

It is on PC Smith's failure in the last of these respects that the judge has based his judgment for the plaintiff.

Did the police owe the plaintiff a duty of care?

The difficulty in answering this question arises from the fact that the plaintiff's loss was not caused directly by any act or failure on the part of the police, but by the activities of the burglars. The police, on the judge's findings of fact, were indirectly responsible for the plaintiff's loss, because of PC Smith's failure properly to inspect the rear of the shop when he realised at 21.26 hours that the alarm bell had stopped ringing, and his consequent failure to prevent or intercept the theft.

It is not sufficient for a plaintiff, who seeks to establish that a defendant owed him a duty to take reasonable care to prevent loss being caused to the plaintiff by the activities of another person, simply to prove that if the defendant did not exercise reasonable care it was foreseeable that the plaintiff would suffer the loss. It is necessary for the plaintiff also to show that in the circumstances of the particular case he stands in a special relationship to the defendant, from which the duty of care arose: see per Lord Wilberforce in McLouqhlin v O'Brien,[1983] 1 AC 410 at 420 H:

"That foreseeability does not of itself, and automatically, lead to a duty of care is, I think, clear."

Dorset Yacht Co Ltd v Home Office [1970] AC 1004, was a decision on a preliminary point of law. A group of Borstal boys, some of whom had a record of previous escapes, were encamped on Brownsea Island under the supervision of prison officers. A number of yachts, including one owned by the plaintiff company, were moored nearby. The boys escaped in the night while the officers were asleep, boarded another yacht in order to reach the mainland, and while attempting to do so collided with and damaged the plaintiff's yacht. The plaintiff sued the Home Office, alleging that the damage to its yacht was caused by the negligence of the prison officers. The preliminary issue was whether the Home Office or the officers owed any duty of care in tort to the plaintiff. The House of Lords held that, in the particular circumstances, a duty of care could arise. Lord Diplock said at p. 1070 B:

"The risk of sustaining damage from the tortious acts of criminals is shared by the public at large. It has never been recognised at common law as giving rise to any cause of action against anyone but the criminal himself. It would seem arbitrary and therefore unjust to single out for the special privilege of being able to recover compensation from the authorities responsible for the prevention of crime a person whose property was damaged by the tortious act of a criminal merely because the damage to him happened to be caused by a criminal who had escaped from custody before completion of his sentence instead of by one who had been lawfully released or who had been put on probation or given a suspended sentence or who had never been previously apprehended at all. To give rise to a duty on the part of the custodian owed to a member of the public to take reasonable care to prevent a Borstal trainee from escaping from his custody before completion of the trainee's sentence there should be some relationship between the custodian and the person to whom the duty is owed which exposes that person to a particular risk of damage in consequence of that escape which is different in its incidence from the general risk of damage from criminal acts of others which he shares with all members of the public. What distinguishes a Borstal trainee who has escaped from one who has been duly released from custody is his liability to recapture, and the distinctive added risk which is a reasonably foreseeable consequence of a failure to exercise due care in preventing him from escaping is the likelihood that in order to elude pursuit immediately upon the discovery of his absence the escaping trainee may steal or appropriate and damage property which is situated in the vicinity of the place of detention from which he has escaped. So long as Parliament is content to leave the general risk of damage from criminal acts to lie where it falls without any remedy except against the criminal himself the courts would be exceeding their limited function in developing the common law to meet changing conditions if they were to recognise a duty of care to prevent criminals escaping from penal custody owed to a wider category of members of the public than those whose property was exposed to an exceptional added risk by the adaption of a custodial system for young offenders which increased the likelihood of their escape unless due care was taken by those responsible for their custody. I should therefore hold that any duty of a Borstal officer to use reasonable care to prevent a Borstal trainee from escaping from his custody was owed only to persons whom he could reasonably foresee had property situated in the vicinity of the place of detention of the detainee which the detainee was likely to steal or appropriate and damage in the course of eluding immediate pursuit and recapture. Whether or not any person fell within this category would depend upon the facts of the particular case including the previous criminal and escaping record of the individual trainee concerned and the nature of the place from which he escaped."

It will be seen that in that case, the relationship between the plaintiff and the Borstal officers from which there could arise a duty of those officers to take reasonable care in guarding the Borstal boys was based upon the fact that the plaintiff's yacht was moored close to the place where the Borstal party was encamped. In other words, the group of persons to whom the duty was owed was limited to the owners of boats moored in the vicinity.

The authority which is most in point in the present case is the decision of the House of Lords in Hill v Chief Constable of West Yorkshire,[1989] AC 53. I cannot do better than to adopt the summary of the relevant facts and the issue from the speech of Lord Keith of Kinkel starting at p. 57 H:

"My Lords, in 1975 a man named Peter Sutcliffe embarked upon a terrifying career of violent crime, centred in the metropolitan police area of West Yorkshire. All his victims were young or fairly young women. Between July 1975 and November 1980 he committed 13 murders and eight attempted murders upon such women, the modus operandi in each case being similar. Sutcliffe's last victim was a 20-year-old student called Jacqueline Hill, whom he murdered in Leeds on 17 November 1980. By chance, Sutcliffe was arrested in suspicious circumstances in Sheffield on 2 January 1981, and confessed to the series of murders and attempted murders following interrogation. On 22 May 1981, at the Central Criminal Court, Sutcliffe was convicted of inter alia the murder of Miss Hill.

Miss Hill's mother and sole personal representative now sues the Chief Constable of West Yorkshire, claiming on behalf of Miss Hill's estate damages on the ground of negligence, for inter alia loss of expectation of life and pain and suffering. The defendant is sued under section 48(1) of the Police Act 1964, enacting that the chief officer of police for any police area shall be liable in respect of torts committed by constables under his direction and control in the performance or purported performance of their functions. The plaintiff in her statement of claim sets out the 20 offences committed by Sutcliffe before the death of Miss Hill and avers that the circumstances of each of these were such that it was reasonable to infer that all were committed by the same man, and further that it was foreseeable that, if not apprehended, he would commit further offences of the same nature. The pleadings go on to allege that it was accordingly the duty of the defendant and all officers in his police force to use their best endeavours and exercise all reasonable care and skill to apprehend the perpetrator of the crimes and so protect members of the public who might otherwise be his future victims. A substantial number of matters are set out and relied upon as indicating that the West Yorkshire police force failed in that duty. It is unnecessary to set out these matters in detail. They amount broadly to allegations of failure to collate properly information in possession of the force pointing to Sutcliffe as a likely suspect, and of failing to give due weight to certain pieces of information while according excessive importance to others.

The defendant, without delivering defences, applied under R.S.C. Ord. 18, r. 19 to have the statement of claim struck out as disclosing no reasonable cause of action. That application was granted by Sir Neil Lawson, sitting as a judge of the High Court on 19 December 1985. Upon appeal by the plaintiff the Court of Appeal (Fox and Glidewell L.JJ. and Sir Roualeyn Cumming-Bruce) [1988] Q.B. 60, on 19 February 1987, affirmed Sir Neil Lawson. The plaintiff now appeals, with leave given in the Court of Appeal, to your Lordship's House.

"In considering whether the statement of claim was rightly struck out it must be assumed that the averments of fact therein contained are true. In particular, it must be assumed that in the course of their investigations into a series of crimes committed by Sutcliffe the West Yorkshire police force made a number of mistakes which they would not have made if they had exercised a reasonable degree of care and skill such as would have been expected to be displayed in the circumstances, by an ordinarily competent police force. It must also be assumed, though this is not specifically averred in the statement of claim, that had they exercised that degree of care and skill Sutcliffe would have been apprehended before the date upon which he murdered Miss Hill, with the result that that particular crime would not have been committed.

"The question of law which is opened up by the case is whether the individual members of a police force, in the course of carrying out their functions of controlling and keeping down the incidence of crime, owe a duty of care to individual members of the public who may suffer injury to person or property through the activities of criminals, such as to result in liability in damages, on the ground of negligence, to anyone who suffers such injury by reason of breach of that duty."

Lord Keith considered the earlier decision of the House of Lords in Anns v Merton London Borough Council,[1978] AC 728, and said:

"It has been said almost too frequently to require repetition that foreseeability of likely harm is not in itself a sufficient test of liability in negligence. Some further ingredient is invariably needed to establish the requisite proximity of relationship between plaintiff and defendant, and all the circumstances of the case must be carefully considered and analysed in order to ascertain whether such ^an ingredient is present. The nature of the ingredient will be found to vary in a number of different categories of decided cases. In the Anns case there was held to be sufficient proximity of relationship between the borough and future owners and occupiers of a particular building the foundations of which it was decided to inspect, and there was also a close relationship between the borough and the builder who had constructed the foundations."

He then dealt in more detail with Dorset Yacht, and quoted the passage from the speech of Lord Diplock which I have already quoted. He concluded on this point:

"It appears from the passage quoted from the speech of Lord Diplock in the Dorset Yacht case that in his view no liability would rest upon a prison authority, which carelessly allowed the escape of an habitual criminal, for damage which he subsequently caused, not in the course of attempting to make good his getaway to persons at special risk, but in further pursuance of his general criminal career to the person or property of members of the general public. The same rule must apply as regards failure to recapture the criminal before he had time to resume his career. In the case of an escaped criminal his identity and description are known. In the instant case the identity of the wanted criminal was at the material time unknown and it is not averred that any full or clear description of him was ever available. The alleged negligence of the police consists in a failure to discover his identity. But if there is no general duty of care owed to individual members of the public by the responsible authorities to prevent the escape of a known criminal or to recapture him, there cannot reasonably be imposed upon any police force a duty of care similarly owed to identify and apprehend an unknown one. Miss Hill cannot for this purpose be regarded as a person at special risk simply because she was young and female. Where the class of potential victims of a particular habitual criminal is a large one the precise size of it cannot in principle affect the issue. All householders are potential victims of an habitual burglar, and all females those of an habitual rapist. The conclusion must be that although there existed reasonable foreseeability of likely harm to such as Miss Hill if Sutcliffe were not identified and apprehended, there is absent from the case any such ingredient or characteristic as led to the liability of the Home Office in the Dorset Yacht case. Nor is there present any additional characteristic such as might make up the deficiency. The circumstances of the case are therefore not capable of establishing a duty of care owed towards Miss Hill by the West Yorkshire Police."

Mr Leveson submits that there is no relevant distinction between the present case and Hill. Hodgson J said in his judgment (transcript p 17E)

"There is no doubt that, in the instant case, the argument has to be that there is a general duty of care owed by this police force to all owners of intruder alarms which are 'connected' to the police control room: there is nothing in the relationship between this plaintiff and the police which distinguished their relationship from all others".

The judge's conclusion was:

"There is clearly a special relationship created between the police and the owners of intruder alarm systems which is of a different and closer nature than that between the police and members of the public in general. Subject therefore to the impact on the case of the fact that it is here sought to make the police liable for the act of a third party (the burglars) with whom the police had no special relationship and over whom they had no control, I would hold that there was here sufficient proximity to raise a duty of care owed by the police to the owners of intruder alarms".

Mr. Scholes, for the plaintiff, accepts the judge's definition of the class of persons to whom the police owe a duty as owners of intruder alarms connected to the police station, though at one stage in his argument he appeared to limit the class to those with "999" type burglar alarms. He submits that this is a much more limited group than the category of "young or fairly young women" to whom it was alleged that the police owed a duty in Hill. Thus, submits Mr. Scholes, the judge was correct in distinguishing the present case from Hill.

It is possible to envisage an agreement between an occupier of a property protected by a burglar alarm and the police which would impose a contractual liability on the police. That is not, however, the situation in this case. The communication with the police in this case was by a 999 telephone call, followed by a recorded message. If as a result of that communication the police came under a duty of care to the plaintiff, it must follow that they would be under a similar duty to any person who informs them, whether by 999 call or in some other way, that a burglary, or indeed any crime, against himself or his property, is being committed or is about to be committed. So in my view if there is a duty of care it is owed to a wider group than those to whom the judge referred. It is owed to all members of the public who give information of a suspected crime against themselves or their property. It follows, therefore, that on the facts of this case it is my opinion that there was no such special relationship between the plaintiff and the police as was present in Dorset Yacht. On this issue I respectfully disagree with the learned judge.

If I were wrong in that conclusion, it would then be necessary to consider whether, as a matter of general policy, the police should be under the duty proposed. As I said in my judgment in this court in Hill, [1988] QB at 75 E,

"Whether one asks, in the words of Lord Wilberforce in Anns v Merton London Borough Council [1978] AC 728, 752A whether there are considerations which ought to negative the duty, or, in those of Lord Keith of Kinkel in Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd [1985] AC 210, 241C, whether it is just and reasonable that a duty of care should arise, a court confronted by a novel set of facts has in the end to give the answer which it thinks justice and public policy require".

In his speech in Hill, Lord Keith dealt with this issue as follows:

That is sufficient 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. In Yuen Kun Yeu v Attorney-General of Hong Kong [1988] A.C. 175, 193, I expressed the view that the category of cases where the second stage of Lord Wilberforce's two stage test in Anns v Merton London Borough Council [1978] AC 728, 751-752 might fall to be applied was a limited one, one example of that category being Rondel v Worsley [1969] 1 AC 191. Application of that second stage is, however, capable of constituting a separate and independent ground for holding that the existence of liability in negligence should not be entertained. Potential existence of such liability may in many instances be in the general public interest, as tending towards the observance of a higher standard of care in the carrying on of various different 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 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 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 failure - for example that a police officer negligently tripped and fell while pursuing a burglar - others 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 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 significant 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. I therefore consider that Glidewell L.J. in his judgment in the Court of Appeal [1988] Q.B. 60,76 in the present case, was right to take the view that the police were immune from an action of this kind on grounds similar to those which in Rondel v Worsley,[1969] 1 AC 191, were held to render a barrister immune from actions for negligence in his conduct of proceedings in court.

Lord Brandon, Lord Oliver and Lord Goff agreed with Lord Keith, and Lord Templeman based his agreement that the appeal should be dismissed solely on considerations of public policy. He said at p 65 C-D:

"The threat of litigation against a police force would not make a policeman more efficient. 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."

Mr. Scholes argues that the factors referred to by Lord Keith do not all apply in the present case, and that if actions of this sort were brought against the police from time to time, it would not require any significant diversion of resources to deal with them. Hodgson J. in his judgment said on this issue:

"This case is clearly distinguishable on its facts from Hill. In Hill the allegation of lack of care was in the detection of crime already committed whereas I am here dealing with lack of care in the prevention of crime.

"It seems to me that there are two main strands to be discerned in the speeches of Lord Keith and Lord Templeman in Hill. The first is that to hold that the police owed a duty of care would have the effect of reducing the efficiency of the police by (per Lord Keith) the waste of 'police time? trouble and expense' put into the 'preparation of the defence to the action and the attendance of witnesses at the trial' and because (per Lord Templeman) 'the necessity of defending proceedings, successfully or unsuccessfully, would distract the policeman from his duties'. The second is the extreme complexity of any investigation into the conduct of the police in the detection of crime.

"I have, I think, to answer the question whether the imposition of the duty of care sought by the plaintiff in this case would or might influence adversely the operational efficiency of the police in their fight against crime. I cannot believe that it would".

In my view the observations of Lords Keith and Templeman in Hill in relation to the effect on the police of their being potentially liable in negligence were general, not limited to the facts of that case. I would therefore hold that it is not fair or reasonable that the police should be under any such common law duty as is here proposed.

It follows that in my judgment the police are not, and were not, under a duty of care of the kind here under consideration. On this ground I would allow the appeal.

If the Police were in breach of a duty of care, did that breach cause the Plaintiff's loss?

In case that opinion should be wrong, I proceed to consider briefly Mr. Leveson's submission about the judge's findings of fact. Put shortly, this is as follows. The evidence is that PC Smith discovered at 21.26 hours that the burglar alarm bell inside the shop had stopped ringing. There is no clear evidence how long before that time the bell stopped ringing. Moreover, there is no evidence as to how long it would have taken a gang of burglars to remove the contents of the shop. Thus there was no proper evidence upon which the judge could conclude, as he did, that if PC Smith had properly inspected the rear of the premises at 21.26 hours, he would have intercepted and prevented the burglary which was happening at that time. In other words, the evidence is not sufficient to prove that if PC Smith had done everything he should have done, he would have prevented the burglary. The theft of the goods might have already been complete by the time the police officer discovered that the bell was no longer ringing.

On this issue I conclude, after some hesitation, that there was evidence upon which the learned judge could properly come to the finding of fact to which he did come. If PC Smith had been doing his job properly, he accepted that he would have been patrolling past the shop with reasonable frequency. While the judge had no clear evidence as to the length of time it would have taken for thieves to remove the entire stock of the shop, this would obviously not have been the work of a few minutes, taking account of the fact that the stock had to be carried down a flight of stairs, presumably to a vehicle waiting below. It follows in my view that the judge was entitled to conclude that, on the balance of probabilities, if PC Smith had investigated the rear of the premises at 21.26 hours, he would have been in time to intercept and prevent the theft taking place.

On this issue therefore I would not disturb the judge's findings, but on the major issue of law I regret that I cannot agree with him. For the reasons I have already set out, I would allow this appeal.

LORD JUSTICE PARKER: I agree that this appeal should be allowed for the reasons set out in the judgments of Slade L.J. and Glidewell L.J. which I have had the opportunity to read in draft. For my part, however, I would also allow the appeal on the further ground that, even if there was a duty of care on the part of PC Smith and even if that duty was broken in the respect found by the judge, there was not sufficient evidence to justify the judge's finding that the breach of duty was causative of the plaintiff's loss. In this I respectfully differ from the views expressed by Glidewell L.J.

It is, in my view, important to note that the plaintiff's pleaded case was that the burglary occurred at or about 7 pm when a person or persons unknown entered his shop and activated the burglar alarm in so doing, and that the defendant's negligence lay in failing to respond to that alarm in the respects which are set out in the judgment of Glidewell L.J. That case was rejected by the judge, who found that the break-in had occurred some two hours later and was still in progress when, at 9.26 pm PC Smith had noticed that the bell, which had in fact been activated at 7.23 pm, had stopped ringing. He found that as a matter of probability i) the bell had stopped ringing shortly before 9.26; ii) that it had stopped because, on entry, the burglars had pulled the control panel away from the wall; iii) that PC Smith realised that the bell had stopped ringing very shortly after it did stop; iv) that had he "done that which he plainly ought to have" (i.e. inspected the back of the premises) the theft of the goods would have been prevented.

The judge's view that the burglary was still in progress at 9.26 was founded on his conclusion that the bell had stopped ringing shortly before 9.26. I take this to mean so short a time before 9.26 that by that time the theft could not have been completed.

Before considering the evidence as to this I should mention that no suggestion that the time of the burglary was 9.26 or thereabouts was raised until after all the evidence had been called. It was then raised by the judge at the beginning of, or in the course of, the closing speech of counsel for the defendant when he indicated that this was likely to be his conclusion. Counsel not surprisingly objected that it was not pleaded but it appears that the matter was taken no further.

As a result of the fact that the point was not raised until after the evidence had been concluded, there was no investigation of matters which were or should have been of great importance for the determination of the time at which the bell stopped ringing. Such evidence as there was is accordingly very sparse.

PC Smith's duty was to patrol the whole of the Grange Precinct. His tour of duty lasted from 6.45 pm to 11 pm. He was to give the plaintiff's shop passing attention, which meant that he would pay particular attention to it because premises at which an alarm has been ringing for some time are apparently attractive to burglars. The alarm could be heard if he was within 40 feet of the shop and he was very close to the shop on a number of occasions between 7.23 and 9.26.

There was no evidence whatever as to the time it would have taken to go round the Precinct, of the size of the Precinct, of how many occasions constituted "a number", of the pattern of his patrol if any or, most crucially, of the time at which, before 9.26, he had last been close enough to the shop to hear the alarm. Nor was there any evidence of the time it would have taken to remove the plaintiff's goods from the shop and load them on to a lorry, a question which would in any event depend upon how many thieves were involved and available to carry the goods from the shop to the lorry.

In my judgment there was, with all respect to the judge, no evidence upon which he could conclude that the bell had stopped, very shortly before 9.26 or even that the time at which it had stopped was too close to 9.26 for the theft to have been completed by that time.

There was, I have no doubt, evidence that the bell had stopped because the panel had been pulled away from the wall; but I can see nothing which, as a matter of probability, could properly lead to the conclusion that that event occurred within such a time before 9.26 that, had PC Smith gone to the back of the premises at that time, he could have prevented the theft.

For those reasons, as well as those of Slade L.J. and Glidewell L.J., I would allow this appeal.

LORD JUSTICE SLADE: I have had the advantage of reading the judgment of Glidewell L.J. in draft, and gratefully adopt his statement of the facts. I agree that this appeal must be allowed for the reasons which he states, but will add some brief observations of my own because we are differing from the learned judge.

The basis of fact (unpleaded) upon which the judge found liability established was that on the balance of probabilities

(a) the burglars entered the premises shortly before 9.26 pm;

(b) PC Smith, on noticing at 9.26 pm that the alarm bell had stopped ringing, failed to inspect the rear of the premises as he should have done (and said he had done);

(c) if PC Smith had promptly inspected the rear of the premises at that time, the theft of the goods would have been prevented.

I am bound to say that finding(a) in particular causes me unease. On the somewhat sparse evidence before us, it seems to me perfectly possible that the bell had in fact stopped ringing a substantial time before 9.26 pm when PC Smith noticed that it had stopped ringing and that by that time the burglars had been and gone. PC Smith's evidence (which on this point was not challenged) was that while in the Precinct he would not have heard the alarm sounding internally in the shop unless he was within 40 feet of it: (Transcript p. 45 A). There was apparently no specific evidence at the trial either as to the size of the Precinct or as to the number of times when PC Smith would have been likely to find himself within 40 feet of the shop during the course of his patrol of the area between about 7.30 pm and 9.26 pm. If the burglary had already been completed by 9.26 pm, any subsequent negligence on the part of PC Smith could have caused the plaintiff no loss, and the police could have been under no liability even if they owed a duty of care to the plaintiff. Nevertheless, for the rest of this judgment I am prepared to assume (without deciding) that all the learned judge's crucial findings of fact were justified on the evidence.

I turn to the law. In Hill v Chief Constable of Yorkshire [1989] AC 53 at p. 59, Lord Keith of Kinkel (with whose speech Lord Brandon of Oakbrook, Lord Oliver of Aylmerton and Lord Goff of Chieveley agreed) defined the question of law "opened up" by the case as being whether

"the individual members of a police force, in the course of carrying out their functions of controlling and keeping down the incidence of crime, owe a duty of care to individual members of the public who may suffer injury to the person or property through the activities of criminals, such as to result in liability in damages on the grounds of negligence, to anyone who suffers such injury by reason of breach of that duty."

This question is one of great general importance. The answer to it given by the House of Lords in that case may, in my opinion, be sufficiently accurately summarised as follows. Generally, no such duty of care exists; the mere foreseeability of likely harm in the circumstances postulated is not by itself enough to give rise to the duty. If the alleged duty on the part of the police officers is to arise in any given set of facts, so as to result in civil liability for failure to control another Man, to prevent his doing harm to a third party, some further ingredient must be present to establish the requisite proximity °T relationship between the plaintiff and the defendant: (see ibid at pp. 60 By 62 B, 62 G-H per Lord Keith).

Here the plaintiff's case has to be, and is, that the connection of his shop by way of a burglar alarm system, capable of raising a 999 call at the Mortimer Street police station, constituted a special ingredient sufficient to establish the requisite proximity of relationship between himself and the police so as to give rise to a duty of care.

As Glidewell L.J. has pointed out, it is possible to envisage an agreement between an occupier of a property protected by a burglar alarm and the police which would impose on the police a contractual liability; but no such contractual liability has been suggested in the present case. As things are, I cannot see that the duty in tort (if any) owed by the police to this plaintiff can have been any greater than the duty in tort (if any) owed by them to any ordinary member of the public who by means of a 999 call warns them that a crime is being or is about to be committed against his person or property. By common law police officers owe to the general public a duty to enforce the criminal law. This duty may in an appropriate case be enforced at the instance of one having title to sue by mandamus: (see Hill [1980] AC at P. 59 per Lord Keith). In my judgment, however, on public policy grounds similar to those given by Lord Keith at p. 63, it is unthinkable that the police should be exposed to potential actions for negligence at the suit of every disappointed or dissatisfied maker of a 999 call. I can see no sufficient grounds 'or holding that the police owed a duty of care to this plaintiff °n or after receipt of the 999 call on 26th January 1986, if they would not have owed a duty of care to ordinary members of the public who made a similar call.

For these and the further reasons given by Glidewell L.J., I consider that the police owed no duty of care to the plaintiff of the kind here alleged, and would allow the appeal on this ground.

(Order: Appeal allowed; order as to costs in court below set aside, save for order for legal aid taxation of plaintiff's costs? costs in court below to be paid by plaintiff, such order not to be enforced without leave; costs against plaintiff in respect of costs of appeal, such order not to be enforced without leave; plaintiff's liability in respect of those costs being assessed as nil; application for costs adjourned for ten weeks to enable Law Society to show cause; legal aid taxation of plaintiff's costs, both in Court of Appeal and below, to take place in Liverpool).