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
(MR JUSTICE GARLAND)

		Royal Courts of Justice
		29th January 1993

LORD JUSTICE BELDAM: These proceedings arise out of a road traffic accident which for the purposes of this appeal must be taken to have occurred in the circumstances set out in the plaintiffs' statement of claim. The relevant events took place in the early hours of the morning of 17th August 1988 when the fourth defendant's articulated bulk carrier was being driven in Airport Way, Luton, Bedfordshire. As it approached the roundabout junction with Gypsy Lane, a length of aluminium tube used as a flushing coupling fell from it into the road. Later that morning at about 5 a.m. the first defendant was driving his Ford motor car along the road. He failed to see the flushing coupling, or at any rate failed to avoid it, and ran over it rupturing the fuel tank of his car which contained diesel fuel. He drove on without stopping to see whether his car had suffered any damage. About 3/4 of a mile further along the road he ran out of fuel leaving a trail of diesel fuel on the road behind him. A few minutes later a police patrol car crewed by officers from the Hertfordshire Constabulary noticed the diesel fuel on the road and followed the trail until they came upon the Ford car out of fuel and stationary beside the road. The two officers stopped and rendered assistance. By radio they notified the Bedfordshire police that diesel fuel had been spilt upon the road. They did not return to the roundabout junction.

At 5.20 a.m. an officer of the Bedfordshire police force drove past the scene of the spillage, noticed the presence of diesel fuel on the road and reported the matter to the Bedfordshire Highways Department. He then continued upon his police duties. About ten minutes later the first plaintiff's wife driving a Morris motor car in Airport Way skidded on the diesel fuel, lost control and collided head-on with an on-coming lorry. It was a serious collision. The first plaintiff's wife sustained injury from which she died on the following day. The first plaintiff himself was injured, as was the second plaintiff who was travelling in the car.

The first plaintiff on behalf of himself and the dependants of the deceased claims damages under the Fatal Accidents Acts.

In addition to claims made against the first defendant and the fourth defendant in negligence and nuisance, the plaintiffs seek redress against the second and third defendants. If the facts stated are established, it might seem unlikely that the plaintiffs would be without remedy against one or other of those who between them created the peril to free passage of the highway, but the plaintiffs' advisers, no doubt anxious in so serious a case to leave no remedy unexplored, have in addition claimed that the second and third defendants are liable for breach of duty and negligence of their officers. Faced with these claims, the Chief Constables applied to the court under Order 18, rule 19, to strike them out as disclosing no reasonable cause of action. The applications were heard by Mr Justice Garland on 31st January this year. He rejected the applications and the Chief Constables now appeal to this court.

The appellants' submissions to Mr Justice Garland were that, accepting as proved the allegations made in the statement of claim, officers of a police force going about their duties on the highway owed no duty of care to protect other road users by warning or otherwise from hazards on the highway which they have not created or for which they are not responsible. The appellants relied on the decision of Hill v. The Chief Constable of West Yorkshire [1989] 1 A.C. 53 and on the decision of this court (unreported) on 16th February 1990 in Alexandrou v. Oxford (Chief Constable of the Merseyside Police) [1990] EWCA Civ 19. In addition, the appellants contended, relying on the second ground upon which the plaintiff's claim in Hill v. The Chief Constable of West Yorkshire (supra) was rejected, that it would be contrary to public policy to hold police officers under any such duty as that alleged by the plaintiffs.

The learned judge considered a number of authorities cited to him and to which we too have been referred. In dismissing the appellants' applications he said:

"But, in my view, this case which I am called upon to determine falls in the grey area, and I take the view that it should be tried so that the facts can be ascertained and the arguments as to the existence or non-existence of a duty based on fact. My answer to the proposition posed by Mr. Livesey [counsel for the second and third defendants], and I am grateful to him for encapsulating the essence of the case so neatly, would be simply this: it may be so, depending on the precise circumstances, including the nature of the hazard, the extent of the danger created and the likelihood of injury. I would therefore dismiss this summons."

Whilst the learned judge is correct in saying that in many cases the question whether a person whose activities create a potential hazard owes a duty to take care for the safety of others may depend upon the extent of the danger created and the likelihood of injury, he was I think wrong to regard those factors as of significance to the appellants' applications in the present case. The appellants accepted before the judge and before this court that their application is based on the assumption that the facts alleged against them in the statement of claim are proved. Thus it must be taken to be established that the appellants' officers driving along Airport Way in the course of their ordinary police duties passed the place in the road where diesel fuel had been spilt and that the officers of the second defendant noted its presence, drove on until they came upon the Ford car and did not return to the scene of the spillage. The police constable driving the third defendant's police car also noticed the diesel fuel on the road suface but did not remain at the site of the spillage. It must be taken to be proved that the diesel fuel on the surface of the road was a source of danger to drivers using the highway in a foreseeable manner and that the collision between the Morris car driven by the deceased and the oncoming motor lorry was caused by the presence of the diesel fuel. Further it must be accepted that the appellants' officers took no steps to warn traffic of the presence of the diesel fuel, or that the road surface was hazardous and took no steps to control traffic at that spot. The appellants' application based on the acceptance of those facts did not depend upon circumstances which might or might not be proved establishing the extent of the peril but upon whether the circumstances alleged and taken to be proved established a duty to take care owed to the plaintiffs. The question was not whether the police officers in the circumstances found to obtain in this particular case owed a duty to the plaintiffs, but whether in any circumstances of the kind pleaded a police constable owes a duty to other drivers to protect them from, or to warn them against, hazards created by others in the road.

Mr Ashworth sought to support the judge's decision that the application to strike out was premature until the facts had been fully investigated by the unreported decision of Lavis v. The Kent County Council (18th February 1992). The plaintiff had received serious injuries whilst riding his motor cycle at a road junction for which the defendants were responsible. He alleged that they were liable to him for failing to ensure that proper warning signs were placed at the approach to the junction. The defendants were empowered to place such signs, but not under a duty to do so. They applied to strike out the plaintiff's claim as disclosing no cause of action. This court declined to do so on the ground that the plaintiff had pleaded his case widely enough to cover a potential vicarious liability of the defendant council for "operational" failure by the defendants' employees to carry out a policy decision and accordingly until the position was clarified the court was unable to say that no cause of action was disclosed. The case is clearly distinguishable on that ground. The appellants' submissions in this case were founded on the decision in Hill v. The Chief Constable of West Yorkshire (supra). The facts of the case are too well known to need repetition. At page 59A Lord Keith said:

"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.

There is no question that a police officer, 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. Instances where liability for negligence has been established are Knightley v. Johns [1982] 1 WLR 349 and Rigby v. Chief Constable of Northamptonshire [1985] 1 W.L.R. 1242. Further, a police officer may be guilty of a criminal offence if he wilfully fails to perform a duty which he is bound to perform by common law or by statute: see Reg, v. Dytham [1979] Q.B. 722, where a constable was convicted of wilful neglect of duty because, being present at the scene of a violent assault resulting in the death of the victim, he had taken no steps to intervene.

By common law police officers owe to the general public a duty to enforce the criminal law: see Reg, v. Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 Q.B. 118. That duty may be enforced by mandamus, at the instance of one having title to sue. But as that case shows, a chief officer of police has a wide discretion as to the manner in which the duty is discharged. It is for him to decide how available resources should be deployed, whether particular lines of inquiry should or should not be followed and even whether or not certain crimes should be prosecuted. It is only if his decision upon such matters is such as no reasonable chief officer of police would arrive at that someone with an interest to do so may be in a position to have recourse to judicial review. So the common law, while laying upon chief officers of police an obligation to enforce the law, makes no specific requirements as to the manner in which the obligation is to be discharged. That is not a situation where there can readily be inferred an intention of the common law to create a duty towards individual members of the public."

After referring to the appellant's argument, Lord Keith continued at page 60A:

"The foundation of the duty of care was said to be reasonable foreseeability of harm to potential future victims if Sutcliffe were not promptly apprehended. Lord Atkin's classic propositions in Donoqhue v. Stevenson [1932] AC 562, 580 were prayed in aid, as was Lord Wilberforce's well-known two stage test of liability in negligence in the Anns case [1978] AC 728, 751-752.

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.

In Dorset Yacht Co. Ltd. v. Home Office [1970] AC 1004, 1060 Lord Diplock said of Lord Atkin's proposition:

'Used as a guide to characteristics which will be found to exist in conduct and relationships which give rise to a legal duty of care this aphorism marks a milestone in the modern development of the law of negligence. But misused as a universal it is manifestly false.'

Earlier he had said, at p. 1058:

'The judicial development of the law of negligence rightly proceeds by seeking first to identify the relevant characteristics that are common to the kinds of conduct and relationship between the parties which are involved in the case for decision and the kinds of conduct and relationships which have been held in previous decisions of the courts to give rise to a duty of care.'"

Not unnaturally Mr Ashworth, Q.C., for the respondents, stressed that Lord Keith had been careful to confine the question of law opened up to whether members of a police force owed a duty to members of the public in the course of carrying out their functions of controlling and keeping down the incidence of crime.

The case of Alexandrou v. Oxford (supra) on which the appellants also relied was likewise a case of failure to carry out proper investigations which would have prevented a burglary after the burglars had set off the burglar alarm. Mr Ashworth accepted that in similar circumstances a member of the public driving upon the highway would not owe a duty of care to other users of the highway to guard them against perils created by others. In the passage in the judgment of Lord Diplock in Dorset Yacht Company v. Home Office (supra) quoted by Lord Keith in Hill's case, Lord Diplock continued:

"The branch of English law which deals with civil wrongs abounds with instances of acts and, more particularly, of omissions which give rise to no legal liability in the doer or omitter for loss or damage sustained by others as a consequence of the act or omission, however reasonably or probably that loss or damage might have been anticipated. The very parable of the good Samaritan (Luke 10, v. 30) which was evoked by Lord Atkin in Donoqhue v. Stevenson illustrates, in the conduct of the priest and of the Levite who passed by on the other side, an omission which was likely to have as its reasonable and probable consequence damage to the health of the victim of the thieves, but for which the priest and Levite would have incurred no civil liability in English law. Examples could be multiplied. ..."

Consequently Mr Ashworth founded his argument for a duty of care on the "duty" of police constables generally to guard the public from injury and from damage to or loss of property. He submitted that this court in the case of Haynes v. Harwood [1935] 1 K.B. 146 had confirmed the existence of such a duty. In that case the plaintiff, a police constable, claimed damages from the defendant for injuries he had sustained in attempting to stop the defendant's horses which had bolted after being left unattended by the defendant's servant. The question of the police officer's "duty" arose only because the defendant had contended that the plaintiff had voluntarily assumed the risk of injury in acting as he did. Rejecting this argument, Maugham L.J. at page 161 said:

"In my opinion the police constable was not in any true sense a volunteer. It is true that he was under no positive legal duty to run out into the street and at the risk of his life to stop two galloping horses; and I quite accept that nobody would have thought of reprimanding him if he had done nothing. It is also true that the primary duty of the police is the prevention of crime and the arrest of criminals; but that is only a part of the duties of the police in London. There is a general duty to protect the life and property of the inhabitants; there is a discretionary duty to direct the traffic, to help blind and infirm people to cross the road, and to direct people who have lost their way. ..."

And at page 162 he said:

"In my opinion they are not mere lookers-on when an accident takes place, or seems likely to take place; they have, I think, a discretionary duty to prevent an accident arising from the presence of uncontrolled forces in the street, if they are in a position to do so."

Mr Ashworth pointed also to the judgment of Roche L.J. at page 166 where he said:

"All the plaintiff knew was that two heavy cart-horses attached to a large van were running away in a crowded street, and that at any rate one woman and a number of children were in great peril; moved, as I think, by a duty both legal and moral - and, I respectfully agree with everything which fell from Maugham L.J. in regard to the duties and position of the police - moved by such a duty, and not from any choice involving a consent to take any risk upon himself, the plaintiff acted and sustained his injuries."

The use by Maugham L.J. with the concurrence of Roche L.J. of the phrases "no positive legal duty", "nobody would have thought of reprimanding him if he had done nothing", and "discretionary duty" shows clearly that he was referring to the public duties attaching to the office of police constable rather than to any duty of care owed to an individual to be inferred from acceptance of the responsibilities of that office.

Although the court referred to "duties" and "legal duties", the words were used in an entirely different context. The same is true of the case of Reg, v. Dytham [1979] Q.B. 722 on which Mr Ashworth also relied. The Court of Appeal Criminal Division had to consider an appeal by a police officer against his conviction for misconduct in public office for standing by and watching a man beaten and kicked to death outside a nightclub. The court's judgment written by Shaw L.J. included the statement from Stephen's Digest of the Criminal law:

"Every public officer commits a misdemeanour who wilfully neglects to perform any duty which he is bound either by common law or by statute to perform provided that the discharge of such duty is not attended with greater danger than a man of ordinary firmness and activity may be expected to encounter."

The word "duty" used in the context of those two cases does not assist to determine whether the failure to perform such a duty in the public interest can give rise to a cause of action for breach of a duty to take care in the interest of an individual.

Police officers undertake duties and are granted powers to enable them to perform their principal functions of keeping the peace and of preventing and investigating crime. Many of their powers are given to prevent actions necessary in the performance of the duties from amounting to civil wrongs. For example, to permit them to perform lawfully acts which would otherwise constitute a trespass to the person or to property. As professor Maitland pointed out as long ago as 1919, Parliament has a propensity generally to heap other powers and duties upon police constables, for example empowering them to enter public houses to detect violations of the Licensing Act, and even in those days he said:

"Examples might be indefinitely multiplied."

The heaping of other powers and duties on police officers has since continued apace, in particular in the sphere of traffic regulation and the investigation of traffic offences.

The general statement that police officers are under a duty to protect the public from injury and from loss of or damage to property does not serve to distinguish the activities of the appellants' officers in the present case from those of the officers in South Yorkshire in Hill's case, or of the officers of the Merseyside police in the case of Alexandrou.

Mr Ashworth also referred us to the case of Kniqhtley v. Johns [1982] 1 WLR 349, pointing out that Lord Keith had referred to it as an instance where liability for negligence had been established without questioning the existence of a duty on the part of the police officers concerned. The facts are significant. The claim was for damages for personal injuries arising out of a road traffic accident. One of the defendants driving through an underpass in Birmingham had overturned his car near a bend in the road in the underpass. Because of the importance of the thoroughfare, Standing Police Orders provided that in the event of an accident within the underpass the first action to be taken was to close the road to traffic. Police officers were quickly on the scene, including a senior police officer and two police motor cyclists. Without closing the underpass, the senior police officer directed the two motor cyclists to ride back to the entrance of the underpass against the flow of traffic on that carriageway. On rounding the bend one of them, the plaintiff, came into collision with a car which had entered the underpass. At first instance liability for the accident had been laid at the door of the driver whose vehicle had overturned in the underpass. He appealed and his appeal was allowed, the court finding that responsibility for the police motor cyclist's injuries lay with the senior police officer. The basis of the court's finding is given in the judgment of Stephenson L.J. at page 357H:

"The inspector may have had some justification for ordering or allowing the plaintiff and Police Constable Easthope to disobey [the Standing Police Order for road accidents or vehicle breakdowns in the Queensway Tunnel) ... He may have had some justification for not putting his explanation before the court from the witness box. But without any explanation why he did not close the tunnel and what he meant by saying he had forgotten to close it, or why the plaintiff should say that if the inspector had not in fact said it, he must, I think, be judged on the evidence which was given. That satisfies me that he was negligent in not closing the tunnel and in ordering or allowing his subordinates to do a very dangerous thing contrary to the standing order."

The senior police officer was found to blame, not simply because he failed to close the underpass but, having failed to close it, because he directed the police motor cyclists to ride back against the flow of traffic which could then enter the tunnel. The circumstances of that case provided an ample basis for a finding that the senior officer's relationship with the police motor cyclist was sufficiently close to justify a finding that he owed a duty of care to his subordinate. That case does not help to solve the question we have to decide.

Since the present case is founded on the failure of the appellants' police officers to take care to prevent harm to the plaintiffs from the primary fault of others, reliance was placed on the decision in Dorset Yacht Company v. Home Office (supra). There detainees in the custody of the defendants had been allowed to escape and had subsequently caused damage to the plaintiff's yachts. The House of Lords held that the Home Office owed a duty of care to the owners of the yachts. That, Mr Ashworth argued, was based on a public duty to confine the detainee which the Home Office had failed to perform. It was an instance of a duty to take care being founded on the failure to perform a public duty, and only a small extension of the principle of proximity would be required to hold that the appellants' officers owed a duty of care in the present case.

Developments in the law of negligence have qualified proximity as the guiding principle on which to extend liability by recognition of a new duty situation. Recent decisions suggest an incremental approach involving what is fair, just and reasonable as well as the concept of proximity.

In his speech in Dorset Yacht Lord Diplock said at page 1059:

"But since ex hypothesi the kind of case which we are now considering offers a choice whether or not to extend the kinds of conduct or relationships which give rise to a duty of care, the conduct of relationship which is involved in it will lack at least one of the characteristics A, B, C or D, etc. And the choice is exercised by making a policy decision as to whether or not a duty of care ought to exist if the characteristic which is lacking were absent or redefined in terms broad enough to include the case under consideration. The policy decision will be influenced by the same general conception of what ought to give rise to a duty of care as was used in approaching the analysis. The choice to extend is given effect to by redefining the characteristics in more general terms so as to exclude the necessity to conform to limitations imposed by the former definition which are considered to be inessential. The cases which are landmarks in the common law, such as Lickbarrow v. Mason (1787) 2 Term Rep. 63, Rylands v. Fletcher (1868) LR 3 HL 330, Indermaur v. Dames (1866) L.R. 1 C.P. 274, Donoqhue v. Stevenson [1932] AC 562, to mention but a few, are instances of cases where the cumulative experience of judges has led to a restatement in wide general terms of characteristics of conduct and relationships which give rise to legal liability."

The two stage approach to the question of the existence of a duty of care formulated by Lord Wilberforce in the well known passage from his speech in Anns v. Merton London Borough Council [1978] AC 728, 751-752, came to be regarded as a universal principle upon which in any given case a duty of care might be found to exist. But as Lord Bridge pointed out in Caparo pic v. Dickman [1990] 2 W.L.R. 358 more recently decisions of the Privy Council and the House of Lords have emphasised the inability of a 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. After referring to the recent decisions, including Hill v. The Chief Constable of West Yorkshire (supra), Lord Bridge said:

"What emerges 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 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 benefit 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 susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific 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. Whilst recognising, of course, the importance of the underlying general principles common to the whole field of negligence, I think the law has now moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits 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 A.L.R. 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, rather than by a massive extension of a prima facie duty of care restrained only by indefinable "considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed."'"

I approach the question of the existence of a duty of care in the present case with these considerations in mind. Firstly, as Lord Keith pointed out in Yuen Kun Yeu v. Attorney-General of Hong Kong [1988] 1 A.C. 175, 192, there was clearly a special relationship between the prison officers and the owners of the yachts so close and direct that a duty to take reasonable care to prevent damage to the yachts arose. But as his citation from the judgment of Dixon J. in Smith v. Leurs (1945) 70 C.L.R. 256, 261-262 shows, it is exceptional to find in the law a duty to control another's actions to prevent harm to strangers and where they are found they arise from special relationships. When it is contended that such special relationship arises out of duties carried out in the performance of a public office, the court must have regard to the purpose and scope of the public duties, whether they are intended to benefit a particular section of the public, e.g. investors or depositors, and whether such persons could reasonably place reliance on the fulfilment of the duties.

Secondly such a duty of care would impose upon a police force potential liability of almost unlimited scope. Not only would the class of persons to whom the duty was owed be extensive, but the activities of police officers which might give rise to the existence of such a duty would be widespread. The constable on the beat who failed to notice a danger on the pavement or noticed it but dismissed it as insufficiently serious to warrant his attention, the officer who searched for but failed to find property when he might have done or the officer who misinterpreted a breathalyser reading might all be said to come under liability to anyone who could show that they suffered injury or loss as a result of his failure. Further, I am not persuaded that there is any sufficient distinction from the reasoning which led the House of Lords to reject the existence of a duty in Hill's case to justify the imposition of a duty to act in the circumstances of the present case.

I am encouraged to find this conclusion supported by the decision of Kennedy J. in Clough v. Dussan, West Yorkshire Police Authority (Third Party) [1990] R.T.R. 178, a case in which an attempt was made to impose liability on the police authority for failing to respond to information that traffic signals were out of order at a junction where a road accident subsequently occurred. Kennedy J. struck out the defendant's claim in the third party proceedings as disclosing no cause of action.

Mr Livesey also based his application on the public policy considerations which formed the second ground of the rejection of the plaintiff's claim in Hill v. The Chief Constable of West Yorkshire: viz. that to hold that the defendant owed such a duty would serve no useful purpose in advancing the general public interest, it would give rise to extensive investigation into the manner in which the police carried out their duties, would lead to many actions being brought against the police which would cause much time, trouble and expense to be devoted to preparation of the defence and the attendance of witnesses at i-he trial. In my view these considerations apply with equal force in the present case. I have already indicated the extreme width and scope of the duty to take care contended for by the respondents. The diversion of police resources and manpower if such a duty were held to exist would, in my judgment, extensively hamper the performance of ordinary police duties and create a formidable diversion of police manpower. I would accordingly hold that the appellants' officers did not owe the plaintiffs a duty of care in the circumstances of this case and for the reasons given would allow the appeal. SIR JOHN MEGAW: I agree that this appeal should be allowed. I agree with the reasons given by Beldam L.J.

In Hill v. Chief Constable of West Yorkshire [1989] 1 A.C. 53, it was held by the House of Lords that there was no cause of action against the defendant for damages for alleged negligence in the conduct by the West Yorkshire police of a criminal investigation. The facts which had to be hypothetically assumed for the purpose of the striking out application were that the police investigation of a series of murders had been carried out without a reasonable degree of care; that, if such care had been exercised, the murderer would have been identified and arrested earlier than was in fact achieved: and that the result would have been that the plaintiff's daughter, the last victim, would not have been killed. It was accepted that, by common law, police officers owe to the general public - the public at large - a duty to enforce the criminal law. But it was held that that duty was not a duty owed to individual members of the public.

That being the position regarding criminal investigation by the police, where the duty owed to the general public rests exclusively on the police, I can see no valid reason for holding that a more extensive duty exists - a duty owed to individual members of the public - in respect of a sphere of public duty where the primary duty - maintaining the safety of the highways rests on public authorities other than the police.

LORD JUSTICE NOURSE: I agree with both judgments.

Order: Appeal allowed; order of Garland J. set aside; action against the second and third defendants struck out; plaintiffs to pay the costs of the action as against the second and third defendants not to be enforced in respect of any costs incurred after 27th November 1991 without leave of the court; application for the costs of the appeal against the Legal Aid Fund adjourned to the registrar; legal aid taxation of plaintiffs' costs of the appeal; application for leave to appeal to the House of Lords refused.