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
QUEENS BENCH DIVISION
MR JUSTICE ASTILL

		Royal Courts of Justice Strand London WC2A 2LL
		Date 3 December 1998

May L.J.

Introduction

On 24.4.92, the plaintiff, a woman Police Constable serving in the Northumbria Police, was attacked and injured by a woman prisoner in a cell at South Shields Police Station. Nearby was Inspector Bell who did not come to the plaintiff's help when she was attacked. The plaintiff brought proceedings against the Chief Constable of Northumbria contending that her injuries were caused by his negligence or by that of Inspector Bell. Her statement of claim in substance alleges that Inspector Bell owed her a duty of care to go to her assistance and take reasonable steps to prevent her from being injured. It is said that the Chief Constable is liable for Inspector Bell's failure to do so under Section 48 of the Police Act 1964. The Statement of Claim also alleges that the Chief Constable was himself under a duty to the plaintiff to provide a safe or proper system of work and that he was in breach of that duty by failing to provide physical assistance to the plaintiff and thereby exposing her to unnecessary risk of injury. The Chief Constable's Amended Defence denied that he owed the plaintiff a duty of care and contended in the alternative that he was immune from liability.

This is an appeal by The Chief Constable from the decision of Astill J. given on 30.7.97 when he held in favour of the plaintiff on the issues of duty and breach of duty. The grounds of the Chief Constable's appeal are that the judge was wrong in law in holding that a police constable owes a duty of care to another police constable to go to the assistance of that other police constable if he or she is attacked.

The decision under appeal

The facts may be taken directly from the judge's judgment:

"On the 24th April 1992 with Sergeant Hall [the plaintiff] attended an address in South Shields concerning two young women who had absconded from Local Authority Care. Both women were taken to the Police Station in South Shields. Sergeant Andrew Wilson was the Custody Sergeant at that police station. The absconder, Donna Marie Brannan, was obstructive and reluctant to be taken into custody and in the Custody Office of the police station it was necessary for the plaintiff to restrain her. She struggled and was verbally abusive. Inspector Bell was the senior officer on duty at that time and he was present when the absconders were in the Custody Office. The plaintiff was instructed by one of the sergeants to take Donna Brannan to the female cell complex and remove her belt and shoes. This is normal practice particularly where a prisoner is aggressive and distressed. The plaintiff's recollection is that she walked with Donna Brannan alone to the female cell complex but Sergeant Hall gave evidence that he walked behind her and so accompanied her. The plaintiff said that during the journey to the cell Donna Brannan required to be restrained. She entered Cell 2 and the plaintiff asked her to remove her belt and shoes and she released her hold on her when she made that request. Sergeant Hall said that when he arrived at the female cell complex following behind, he saw Inspector Bell at or near the cell and so knowing that assistance would be at hand, he returned to the Charge Room as soon as he could because it was important for Sergeant Wilson not to be alone with the other female.

The plaintiff said that when she was in the cell with Donnan Brannan she was attacked as Brannan kicked and punched out at her. The plaintiff screamed for assistance while she was attempting to fend off the attack. She said that Brannan jumped onto her shoulder injuring her and shouted "I am going to bite your fucking face off".

The noise of this commotion and the shouts for help from the plaintiff were heard in the custody room by both sergeants. Sergeant Hall left very quickly and went immediately to the female cell complex where he said he saw Inspector Bell standing in the open door of the cell doing nothing. He went passed the Inspector into the cell to give assistance to the plaintiff. The essence of the Plaintiff's case is that Inspector Bell did nothing to assist."

Inspector Bell's evidence differed from that of the plaintiff and the two sergeants. He said that he was standing in the foyer to the cell complex and had gone there for the specific purpose of helping the plaintiff if she needed help. He said that, if he had heard a noise or disturbance, he would have gone straight into the cell to help. He agreed that he had a duty to do that. But he said that he heard no noise of any commotion and accordingly had no cause to go to the plaintiff's help.

The judge concluded that the evidence of the plaintiff and of Sergeants Hall and Wilson was the more reliable. He rejected Inspector Bell's evidence that he saw no reason to intervene. Sergeant Hall hurried from the Charge Room some distance away at the noise of the disturbance. There was good reason for Inspector Bell to help the plaintiff when she was attacked. The judge concluded that it was probable that, if Inspector Bell had intervened to help, the attack would not have occurred at all or at least it would have taken a different and less harmful form. He concluded that Inspector Bell was in breach of his police duty, a duty which he himself acknowledged.

These findings of fact, against which there is no challenge, led to the quite startling result that Inspector Bell, who was present for the acknowledged purpose of helping the plaintiff if she needed it, stood by and did nothing when the plaintiff was attacked and when he himself acknowledged that, on the facts found by the judge, it was his police duty to help.

The judge held in the plaintiff's favour that, on the facts which he found, the acknowledged breach of police duty was also in law a breach of duty entitling the plaintiff to claim damages. The judge accepted that the reason Inspector Bell went to the cell complex was to provide safety for the plaintiff if she were attacked. That was analogous to the provision of a safe system of work. Their relationship was wholly different from that of a police officer with a member of the public. The judge believed that the public would be greatly disturbed to discover that a police officer going about his duties who was injured by a violent prisoner because another police officer had deliberately desisted from helping had no civil redress against the Police Authority. It could be no answer that the injured police officer might be compensated from other sources. The judge accordingly held that the duty which Inspector Bell acknowledged was a duty owed at common law and actionable in tort. The form of the order of the court as amended which resulted from the judgment was that Chief Constable owed a duty of care to the plaintiff actionable in tort. The judgment itself embodies a finding that the Chief Constable was responsible for a breach of duty by Inspector Bell. It is less clear whether the judge was also holding that the Chief Constable was personally in breach of a duty analogous to that of failing to providing a safe system of work.

The parties' submissions

Mr Robertson Q.C. on behalf of the Chief Constable submits that the judge was wrong to impose on a police constable a positive duty to act in circumstances where to do so might put the police constable himself at risk. He submits that the law is slow to impose such positive duties. There is no general duty of care to prevent others from suffering loss or damage caused by the deliberate wrong doing of third parties, because the common law does not impose liability for pure omissions (see Lord Goff of Chieveley in Smith v. Littlewoods [1987] 1 A.C. 241 at 271B). There must to be exceptional circumstances before the common law will impose a positive duty to act. Such circumstances can exist where there is a special relationship, and Mr Robertson accepted that for some purposes at least there was a relationship between the plaintiff and the Chief Constable analogous to that between employer and employee. He accepted, I think, that the Chief Constable was under a positive duty to take reasonable care for the plaintiff's safety in what might compendiously be called housekeeping matters such as are the commonplace subject of employees' personal injury claims. He did not, however, accept that the law went so far as to impose a positive duty on one police constable to go to the assistance of another who was under attack.

Mr Robertson relied on Hill v. Chief Constable of West Yorkshire [1989] 1 A.C. 53 for the proposition that as a matter of public policy the police are immune from actions for negligence in respect of their activities in the investigation and suppression of crime; and that there is no general duty of care owed by the police to individual members of the public who might suffer injury through the activities of a criminal. He submitted that, even if the judge was correct in holding that there was in the present case a sufficient special relationship between Inspector Bell and the plaintiff, that was no reason for holding that the Chief Constable should not have immunity for public policy reasons. In Osman v. Ferguson [1993] 4 All ER 344, the Court of Appeal held that, although there was an arguable case that there was a sufficient special relationship between the plaintiffs' family and investigating police officers, it would nevertheless be against public policy to impose a duty of care.

In Alexandrou v. Oxford [1993] 4 All ER 328, a member of the public failed in a case alleging negligence by police officers in inspecting shop premises in which burglar alarms had been activated. The Court of Appeal held both that there was no sufficient special relationship between the plaintiff and the police. It was also held on public policy grounds that there was no duty of care.

In Ancell v. McDermott [1993] 4 All ER 355, the plaintiffs were injured in a car accident when the car skidded on diesel fuel spilled on the road. Police officers knew about the diesel fuel, but had taken no relevant action to prevent an accident. The plaintiff's claim against the police failed. The Court of Appeal held that the police were under no duty of care to protect road users from, or to warn them of, hazards which the police had discovered while going about their duties on the highway. There was no sufficient special relationship between the plaintiffs and the police giving rise to an exceptional duty to prevent harm from dangers created by someone else. It would be against public policy to impose on the police a duty of care of such width and scope.

In Clough v. Bussan [1990] 1 All E.R. 431, there were third party proceedings against the police in which it was alleged that they had contributed to a car accident by failing to do anything about traffic lights which they knew were out of order. Kennedy J. held that there was no sufficient relationship between the police and the claimant to give rise to a common law duty of care.

Mr Robertson submitted that the judge in the present case was wrong to draw a distinction between cases such as these and the present case on the basis that the relationship relied on was between two fellow police officers. He submitted that the distinction would mean that, if a member of the public and a police constable were held hostage by a criminal and the police negligently failed to rescue them and the criminal murdered them both, the family of the police constable would be able to recover damages, but the family of the member of the public would not.

Mr Robertson further submits that the courts are not the appropriate place to determine whether in operational circumstances a police constable who fails to go to the assistance of another police constable or a member of the public may have failed in any duty. The internal affairs of police forces are regulated by statute and regulation, including The Police (Discipline) Regulations (S.I. 1985 No.518). Inspector Bell may have been in breach of, for instance, paragraphs 1 and 4(a) of Schedule 1 of these Regulations. The Regulations contain no express provision to the effect that a police constable may not bring an action against his Chief Constable arising from omissions of a fellow police officer. But Mr Robertson submits that Waters v. Commissioner of Police for the Metropolis (Court of Appeal 3.7.97), which followed Calveley v. Chief Constable of South Yorkshire Police [1989] 1 A.C. 1228 is authority for the proposition that in circumstances such as those in the present case no actionable duty of care arises. I shall return to Waters later in this judgement.

Mr Robertson submits that as a matter of public policy the court should never have to decide whether a police officer made a mistake in the agony of the moment or was negligent in failing to help another police officer. A police officer will often have to make a critical decision affecting his own safety and that of others with little or no time for considered thought and it would be wrong if such decisions were influenced by the possibility of a negligence claim. Mr Robertson relied on Hughes v. National Union of Mine Workers [1991] 4 All E.R. 278 to which I shall refer later in this judgment.

Mr Robertson suggests that the judge was wrong to discount the fact that the plaintiff in this case could be compensated by the Criminal Injuries Compensation Board and, if her injuries were so serious that she could no longer continue to work as a police officer, she would further be compensated by an ill health retirement scheme. He referred in support of this submission to a passage in the judgment of Stuart-Smith L.J. in W. v. Essex County Council [1998] 2 All E.R. 117 at 127(b). He also relied on a "flood gates" submission, which, as with most such submissions, was in my view unpersuasive.

Thus Mr Robertson's submission was essentially that as a matter of public policy neither the Chief Constable nor Inspector Bell should be held to have owed the plaintiff a duty of care. The public policy considerations on which he relied were those identified by Lord Keith in Hill v. Chief Constable of West Yorkshire at [1989] 1 A.C. 53 at p. 62. Mr Robertson stressed that to impose a positive duty would put police officers in an invidious position of having to decide whether to try to rescue or not; that such questions are better left to their judgment at the time unclouded by the possibility of a negligence claim; that potential liability would involve a drain on police funds; that it would affect police morale; that there are other means of bringing officers to book; and that there are other bases of compensation.

Mr Hytner Q.C. on behalf of the plaintiff started his submission from a substantially different stand point, and, as Hirst L.J. observed during the hearing, the two submissions run on parallel lines which do not often converge. Mr Hytner's starting point is that the relationship between the Chief Constable and the plaintiff is analogous to that of employer and employee. [This is not contentious as far as it goes, but I record references to Section 48 of the Police Act 1964 (now Section 88 of the Police Act 1996); The Police (Health & Safety) Act 1997; Section 90 of the Offices, Shops and Railway Premises Act 1963; the exclusion of police officers from the protection in the Employment Protection Consolidation Act 1978 and the Trade Union and Labour Relations (Consolidation) Act 1992; and their inclusion in Section 17 of the Sex Discrimination Act 1972 and Section 16 of the Race Relations Act 1976.] Mr Hytner submits, as he successfully in the result submitted in Frost v. Chief Constable of South Yorkshire Police [1997] 3 W.L.R. 1194, that the scope of the duty owed by an employer, and a Chief Constable in the position of an employer, is the same whatever the nature of the employment, namely, to take reasonable care to avoid exposing the employee to unnecessary risk of physical or psychiatric injury. The emphasis is on the word "unnecessary". It may be necessary for police officers to be exposed to risk of injury because of the nature of the duties they are required to perform. The necessary risk may be affected by lack of resources. But the Chief Constable has to take care not to expose his officers to unnecessary risk by sensible policies and by seeing that subordinates take care to implement those policies. The scope of the duty varies widely according to the nature of the employment. Some jobs are inherently dangerous, some very dangerous (for example firemen, stevedores and police officers) and employers cannot reasonably protect their servants from all foreseeable danger. On the contrary, they may be obliged knowingly to expose them to foreseeable risk of death, as if a fireman is instructed to enter a burning building to rescue a child.

Mr Hytner submits that, in the present case, there were adequate resources in that two officers were available to deal with the potentially dangerous prisoner. If there had not been two officers, the plaintiff would have no case. The system of work was that, where it was reasonably possible, the woman prisoner was not to be left in the charge of a single officer. Had Inspector Bell not been available, Sergeant Hall would have had to make an operational decision, which would have been difficult to impugn, whether Sergeant Hall, a male, or the plaintiff, who was less senior and experienced but a woman, should have been left alone with the woman prisoner. As it was, two officers were available to operate the system and two officers were in fact so deployed. The system in this case was reasonably safe, but Inspector Bell without cause and negligently failed to undertake his part of the system and the Chief Constable is liable for the failure of his subordinate.

Mr Hytner gave two examples. A police officer is instructed to clean a floor in a police station where oil has been spilled. The police officer fails to do so and another officer slips on the oil and is injured. The Chief Constable would be liable to the injured officer for his subordinate's failure to take reasonable care to see that the premises were safe. In another example, a police officer, who is a mechanic, is instructed to carry out repairs to a police motor cycle. He does so negligently and another officer is injured when the motor cycle goes out of control and crashes because of the negligent repair. The Chief Constable would be liable to the injured officer for his subordinate's failure to take reasonable care to provide safe equipment. Mr Hytner asks rhetorically what policy distinguishes those examples from the present case. Another example might be where a workman has to climb a tall ladder and a second workman is instructed to stand at and secure the foot of the ladder. If the second workman simply fails to do what he is told and the first workman falls from the ladder because no one is securing its base, the employer of the injured workman would be liable for the other employee's failure to do what was required of him to ensure the reasonable safety of the injured workman.

Discussion

The main lines of any modern analysis of duties of care are well known and may be shortly summarised. If a person causes direct physical injury to another person or his property, a duty of care is readily found (other than in exceptional circumstances) and requires little discussion. Cases where a defendant is said to be liable for physical injury caused by a third party or where the damage is, not physical injury, but economic loss often require greater analysis. In such cases (but in truth in all cases) the three criteria for the imposition of a duty of care are foreseeability of damage, a sufficiently close relationship between the plaintiff and the defendant and that it should be just and reasonable to impose the duty contended for. One of many authorities in which these questions are discussed is Caparo Industries v. Dickman [1990] 2 AC 605. This was a case of pure economic loss and consideration was directed mainly to the existence or otherwise of a duty to guard against such loss. But Hill v. Chief Constable of West Yorkshire was referred to in Caparo in the opinion of Lord Bridge at 617H, and it is clear and uncontentious that the three criteria apply to cases involving physical injury. Duties of care are also analysed by asking whether the plaintiff assumed responsibility to the defendant to guard against the particular damage (see Henderson v. Merrett [1995] 2 AC 145, in particular in the opinion of Lord Goff at 180-181). This again was a case of pure economic loss, but there is no reason, I think, why it should not also be applied, in parallel with the Caparo criteria, to cases of physical injury. By driving a motor car on the road, a motorist assumes responsibility to others to drive it with reasonable care. By taking on employees, an employer assumes responsibility for their reasonable safety at work. If an employer instructs employees to undertake particular tasks, he may, depending on the circumstances, assume responsibility that those tasks may be undertaken with reasonable safety. There may, however, be circumstances, as Mr Hytner acknowledges, where the employer does not assume such a responsibility.

Two other considerations are, firstly, that the law develops novel categories of negligence incrementally (see the opinion of Lord Bridge in Caparo at 618C), and secondly that public policy considerations may lead the court to hold in a particular case or class of cases that there is no duty of care. It seems to me that considerations of public policy, although they are often treated separately, may be seen as aspects of the third of the Caparo criteria, i.e. whether it is just and reasonable to impose a duty of care.

There is, in my judgment, only one point of difficulty in the present appeal. It is plain that the plaintiff's injuries were foreseeable. There was an obvious close relationship between her and Inspector Bell. Inspector Bell may readily be said to have assumed a responsibility to help the plaintiff if she needed help. The Chief Constable, through Inspector Bell and on his own account, may readily be said to have assumed an equivalent responsibility. The difficult question is whether, in a novel situation, it is just and reasonable to impose incrementally the duties contended for or whether as a matter of public policy no such duty should be imposed. In my view, this last difficult point must be addressed by reference to a range of decided cases relating to police officers and other public services.

At one end of the range is Hill v. Chief Constable of West Yorkshire. Police officers do not owe a general duty of care to individual members of the public who may suffer injury through the activities of a criminal. There may be particular exceptions to this, but, as a matter of public policy, the police are generally immune from actions for negligence in respect of their activities in the investigation and suppression of crime. At the other end of the range are Mr Hytner's employer and employee examples. These examples are nevertheless close to the present case and it is not a large incremental step which Mr Hytner invites the court to take.

Hill v. Chief Constable of West Yorkshire does not provide blanket immunity for all police operations. As Lord Keith said at page 59B:

"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 Knightly 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."

This passage is instructive because it shows both that police officers may be liable in tort to a person who is injured as a direct result of his omissions, and that Knightly v. Johns (to which I refer later in this judgment) was regarded as having been correctly decided. I note in passing that the facts of R. v. Dytham were quite close to those in the present appeal but the legal context was different. The offence there charged required the ingredient, not relevant to the present appeal, of wilful neglect of duty and it is, I think, clear from the judgment of Lord Widgery C.J. that the common law or statutory duty which the police officer in that case failed to perform was a public duty.

In Waters v. The Commissioner of Police for the Metropolis (Court of Appeal, 3.7.97), a woman police officer brought proceedings against the Commissioner alleging that he was directly or vicariously liable for a protracted period of harassment, bullying and ill-treatment of the plaintiff by other police officers. Her claim under section 4 of the Sex Discrimination Act 1975 was dismissed by an Industrial Tribunal and her appeal was dismissed by the Employment Appeal Tribunal. Her common law claim was struck out by Wright J. She appealed against both decisions. Dealing with the common law claim, Evans L.J. considered a number of possible causes of action including one in negligence. He considered submissions that the Commissioner was in breach of a personal duty of care, equivalent to an employer's duty to provide his employees with a safe system at work. Of this he said at page 23-4:

"In my judgment, it is not necessary to go so far as to hold that no such duty of care arises or could arise between a chief officer of police and the police officers under his direction and control. The reason is that there are well-established policy reasons which prevent the duty from having the scope contended for in the present case. In the only authority which was concerned with the internal organisation and operation of the police force, the House of Lords held that no such duty existed : Calveley v. Ch. Const. of Merseyside [1989] 1 A.C. 1228. The plaintiffs were police officers against whom disciplinary proceedings had been taken. They alleged that the proceedings were not conducted properly and expeditiously, which had caused them damage, increased anxiety and injury. Lord Bridge gave compendious reasons why the claim could not be maintained (see p.1238) One reason was that no common law duty of care was owed by a police officer investigating an allegation of a criminal offence, whether the suspect was a police officer or a civilian (1238G).

Evans L.J. said that this seemed to be direct authority that the appellant could not allege a liability in negligence against the Commissioner or her senior officers in the circumstances of that case, insofar as she relied on their responses or failure to respond to the various complaints which she made. The reasons were those given by the House of Lords in Hill and in Calveley. The second main ground for her complaint against the Commissioner personally, that she was allowed to be harassed and treated unfairly by fellow-officers, also did not support a duty of care for the same reasons. Evans L.J. continued:

"I return therefore to the alternative claim, that the Commissioner is vicariously liable under section 48(1) for torts including the tort of negligence committed against the appellant by other police officers under his direction and control. Here, the emphasis is on the duties owed by serving police officers between themselves. A police officer "like anyone else" who negligently performs his duties can be held liable in negligence if another person is injured, whether a civilian (Rigby v. Ch. Const. Northants. [1985] 1 W.L.R. 1242) or a junior officer under his command (Knightley v. Johns [1982] 1 WLR 349). Both of these were referred to without disapproval by Lord Keith in Hill ([1989] 1 A.C. at 59). In both cases, it seems to have been accepted that if the police officer was negligent then liability followed. More recently, in Hughes v. N.U.M. [1991] 4 All E.R. 278 May, J. held that the duty of care did not arise in certain operational circumstances, although in Frost v. Ch. Const. of South Yorkshire (above) the existence of a duty was not challenged. The precise scope of the duty of care, therefore, and the extent to which it may be limited or excluded, have not been fully worked out by the Courts, as regards operational circumstances."

The allegations in Waters were not of negligence in operational circumstances. After further consideration, Evans L.J. held that the common law claim had been rightly struck out. Waite L.J. and Swinton Thomas L.J. gave judgments in which they both agreed with Evans L.J's reasons.

Although the incident which is the subject of the present appeal occurred inside a police station, I consider that the case should be regarded as one where negligence is alleged by a police officer against a fellow police officer in operational circumstances. The plaintiff was dealing with a recently arrested prisoner whom she was in the process of securing in a police cell. In my view, in this respect there is no substantial distinction between the circumstances of the present case and a case where the plaintiff might have been arresting the same person in the street or, having arrested her, was putting her into a police vehicle to take her to the police station.

In Alexandrou v. Oxford [1993] 4 A.E.R. 328, police officers attended in response to a burglar alarm but were alleged to have dealt with the matter incompetently so that the burglars made off with a large quantity of valuable property. The Court of Appeal held that the police owed no duty of care to a person who had a direct alarm to the police station nor to any member of the public making a 999 call. At p. 338 Glidewell L.J. said:

"It is possible to envisage an agreement between an occupier of 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 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."

The court held that there was no such duty.

In Hughes v. National Union of Mine Workers [1991] 4 All E.R. 278, the plaintiff was one of a number of police officers deployed to control serious public disorder by a large number of picketing miners. He was injured by some of those disorderly miners. He brought an action against his Chief Constable under Section 48 of the Police Act 1964 alleging that the Officer in Charge deployed the forces at his disposal negligently, so that the plaintiff was exposed to an excessive and avoidable risk of injury. I held at first instance that the plaintiff's claim against the Chief Constable was bound to fail and should be struck out. At page 288d I said:

"... public policy requires that senior police officers should not generally be liable to their subordinates who may be injured by rioters or the like for on the spot operational decisions taken in the course of attempts to control serious public disorder. That, in my judgment, should be the general rule in cases of policing serious public disorders. There may be exceptions where the plaintiff's injuries arise, as in Knightley v. Johns, from specifically identified antecedent negligence or specific breach of identified regulations, orders or instructions by a particular senior officer."

In Knightley v. Johns [1982] 1 WLR 349, there was a traffic accident at the exit of a tunnel carrying one-way traffic. A number of policemen came on the scene including an inspector who forgot to close the tunnel. He ordered two police officers on motor cycles, one of whom was the plaintiff, to go back and close the tunnel. They rode back through the tunnel against the oncoming traffic. Near the entrance of the tunnel, the plaintiff collided with an oncoming motorist and was injured. The motorist was found on the facts not to have been negligent. Both the inspector, in ordering the plaintiff to ride back through the tunnel in the face of the oncoming traffic, and the plaintiff, in carrying out the order, acted contrary to, and in breach of their police force's standing orders for road accidents in the tunnel. The Court of Appeal held that the inspector was negligent in not closing the tunnel before he gave orders for that to be done and also in ordering or allowing his subordinates to carry out the dangerous manoeuvre of riding back along the tunnel contrary to the standing orders. Thus a police inspector may sometimes owe a duty of care to a subordinate officer in what may broadly be called "operational circumstances". The duty in Knightley v. Johns was a duty to comply with specific standing orders and the negligence was a failure to close the tunnel and a breach of specific provisions of the standing orders. Two features of this decision are that the police inspector's own negligence had directly caused the plaintiff's injury and the plaintiff's injury was attributable in part at least to positive negligent intervention by the police inspector which created the danger. The omission to close the tunnel was also held to be a breach of duty.

In Swinney v. Chief Constable of Northumbria [1996] 3 All ER 449, the first plaintiff gave information to the police about the identity of a person implicated in the unlawful killing of a police officer. She gave the information in confidence and asked that any contact with her should be made in confidence by telephone because she did not want the information traced back to her. The police, who knew that the person implicated was violent, nevertheless recorded the information in a document which named her as the informant. The document was left in an unattended police vehicle which was broken into by criminals. The document was subsequently obtained by the person implicated. The first plaintiff and her husband were then threatened with violence and arson and suffered psychiatric damage. She brought proceedings against the Chief Constable alleging negligence in failing to keep the confidential information secure. The Chief Constable applied to strike out the claim as disclosing no reasonable cause of action. The Court of Appeal held that it was at least arguable that a special relationship existed between the police and an informant who passed on information in confidence implicating a person known to be violent which distinguished the informant from the general public as being particularly at risk and gave rise to a duty of care on the police to keep such information secure. Although the police were generally immune from suit on grounds of public policy in relation to their activities in the investigation or suppression of crime, that immunity had to be weighed against other considerations of public policy, including the need to protect informers and to encourage them to come forward without undue fear of the risk that their identity would subsequently become known to the person implicated. On the facts pleaded, it was arguable that a special relationship existed which rendered the plaintiff particularly at risk, and that the police had in fact assumed a responsibility of confidentiality to the plaintiff. Considering all relevant public policy factors in the round, the prosecution of the plaintiff's claim was not precluded by the principle of immunity.

In his judgment in Swinney, Hirst L.J. recorded at page 463j that it was submitted on behalf of the Chief Constable that Hill's case established that the police are immune from liability for negligence in the investigation of crime, at least where the harm to the plaintiff is caused by a third party, except where the police had assumed a responsibility to the plaintiff. Reliance was placed on the elements of public policy, to be found in Lord Keith's opinion in Hill's case, which led to this result. It was submitted in Swinney that it was impossible in the circumstances of the case to attribute to the police an assumption of responsibility. The central part of Hirst L.J's judgment is at page 464f as follows:

"Hill's case is, of course, one of cardinal importance. As was held in Alexandrou v. Oxford [1993] 4 All ER 328 and in Osman v. Ferguson [1993] 4 All ER 344, it lays down a principle of general application which was not specifically limited to the actual facts of that particular case, and nothing I say should be interpreted as in any shape or form seeking to undermine that principle.

However, in my judgment, that principle cannot be completely divorced from the circumstances highlighted by Lord Keith in his judgment, which recurred mutatis mutandis in Osman v. Ferguson and in Elguzouli-Daf v. Comr of Police of the Metropolis [1995] 1 All ER 833, [1995] QB 335. It follows that I cannot accept Mr Gompertz's submission that the police have a blanket immunity which gives them a complete answer in the present case. As Laws J. pointed out in his judgment, there are here other considerations of public policy which also have weight, namely the need to preserve the springs of information, to protect informers, and to encourage them to come forward without an undue fear of the risk that their identity will subsequently become known to the suspect or to his associates. In my judgment, public policy in this field must be assessed in the round, which in this case means assessing the applicable considerations advanced in Hill's case, which are, of course, of great importance, together with the considerations just mentioned in relation to informers, in order to reach a fair and just decision on public policy.

Mr Powell invited us to hold that most of the considerations advanced in Hill did not apply here. I prefer not to express any view on that either way without fuller knowledge of the facts. Suffice it to say that if all the relevant aspects of public policy referred to above are considered in the round, it is, in my judgment, at least arguable that the immunity should not apply here.

I also consider that it is at least arguable in the present case that, on the facts pleaded on the statement of claim, including the texts of the two messages quoted, the police did, in fact, assume a responsibility of confidentiality to the plaintiffs (or at least to the first plaintiff)."

The present case concerned police officers dealing with a potentially violent prisoner in custody. Counsel were unable to draw to our attention any authority relevantly relating to prison officers. There are, however, decisions about public rescue services which, in my view, have some relevance.

In Capital & Counties plc v. Hampshire County Council [1997] QB 1004, the Court of Appeal held that the fire brigade are not under a common law duty to answer a call for help and are not under a duty to take care to do so. By taking control of fire fighting operations, a Senior Fire Officer is not to be seen as undertaking a voluntary assumption of responsibility to the owner of the premises on fire, whether or not the owner in fact relies upon the fire brigade. Simply by attending the fire and conducting fire fighting operations the fire brigade do not, other than in exceptional circumstances, create or increase the danger. A fire brigade does not enter into a sufficiently proximate relationship with the owner or occupier of premises to come under a duty of care merely by attending and fighting the fire. This is so even though the Senior Officer actually assumes control of the fire fighting operations. The court also considered whether it was just, fair and reasonable to impose a duty of care, asking the question whether the fire brigade should have the benefit of immunity as a matter of public policy. The conclusion was that they should not have immunity in cases where by their own positive action they had created or increased the danger. In one of the three consolidated appeals before the court, where the defendants negligently turned off sprinklers which were at that stage containing the fire and they by their positive act exacerbated the fire so that it rapidly spread, a duty of care was established. In the other two cases where there was no such positive act, there was no duty of care. [In OLL Limited v. Secretary of State for Transport [1997] 3 All.E.R. 897, I applied at first instance the Capital & Counties principles to the Coastguard carrying out a rescue operation at sea; and in Daly v. Surrey County Council (unreported, October 1997) I again applied at first instance these principles to the fire brigade conducting a rescue operation on a building site where a building worker had been trapped when an excavation trench collapsed.]

I now summarise relevant strands drawn from the cases. For public policy reasons, the police are under no general duty of care to members of the public for their activities in the investigation and suppression of crime (Hill). But this is not an absolute blanket immunity and circumstances may exceptionally arise when the police assume a responsibility, giving rise to a duty of care to a particular member of the public (Hill and Swinney). The public policy considerations which prevailed in Hill may not always be the only relevant public policy considerations (Swinney).

Neither the police nor other public rescue services are under any general obligation, giving rise to a duty of care, to respond to emergency calls (Alexandrou), nor, if they do respond, are they to be held liable for want of care in any attempt to prevent crime or effect a rescue. But if their own positive negligent intervention directly causes injury which would not otherwise have occurred or if it exacerbates injury or damage, there may be liability (Capital & Counties).

For public policy reasons, a senior police officer is not generally to be held liable to a subordinate for operational decisions taken in the heat of the moment and when resources may be inadequate to cover all possibilities (Hughes). But a senior police officer may be liable to a subordinate for positive negligent intervention which causes injury to the subordinate and for particular failure or particular instructions given in breach of specific regulations which result in injury (Knightly v. Johns). Just as circumstances may occur in which a police officer assumes responsibility in particular circumstances to a particular member of the public not to expose the member of the public to a specific risk of injury (Swinney), so in my judgment a police officer may in particular circumstances assume a similar responsibility to another police officer. This last part sentence is, I think, the only increment in this summary which goes beyond matters decided in the authorities to which I have referred. It is not in my view in any sense a difficult incremental step to take, since for obvious reasons the relationship between individual police officers working together is likely to be closer than any relationship between the police and particular members of the public.

If a police officer tries to protect a member of the public from attack but fails to prevent injury to the member of the public, there should in my view generally be no liability in tort on the police officer for public policy reasons. This is analogous to the law relating to the fire services and quite close factually to Alexandrou v. Oxford. If a police officer tries to protect a fellow officer from attack but fails to prevent injury to the fellow officer, there should in my view generally be no liability in tort. The relationship between the two police officers is arguably closer than the relationship between the police officer and the member of the public, but the public policy considerations are essentially the same and are compelling. One such consideration is that in the circumstances liability should not turn on, and the court should not have to inquire into, shades of personal judgment and courage in the heat of the potentially dangerous moment.

But in this case, Inspector Bell acknowledged his police duty to help the plaintiff. Yet he did not, on the extraordinary facts found by the judge, even try to do so. In my judgment, his acknowledged breach of police duty should also incrementally be seen as a breach of a legal duty of care. The duty is a duty to comply with a specific or acknowledged police duty where failure to do so will expose a fellow officer to unnecessary risk of injury. Although I have expressed the duty so formulated as an increment, it is the same as, or very close to, the duty which founded liability in Knightly v. Johns. There is also a sense in which Inspector Bell (and perhaps the Chief Constable) assumed a responsibility, not absolute, for the plaintiff's safety. There is in my view in this case a strong public policy consideration to balance with those identified in Hill, that is that the law should accord with common sense and public perception. I am sure that Astill J. was correct to say that the public would be greatly disturbed if the law held that there was no duty of care in this case. The particular circumstances of this case should not be left solely to internal police discipline. In addition, the public interest would be ill-served if the common law did not oblige police officers to do their personal best in situations such as these. The possibility of other sources of compensation is a relevant consideration, but not in my view more than that. Mr Robertson's floodgates submission is no more persuasive in this case than in others where there should be a duty.

An ingredient of my conclusion is the close relationship between Inspector Bell and the plaintiff. They were police colleagues and he was in close attendance for the specific purpose of coming to her help if she needed help. It would not therefore follow from this analysis that I would also have found a duty of care owed by a police officer to a member of the public in otherwise similar circumstances. The balance of public policy could, depending on the circumstances, then be different.

Conclusion

For these reasons, I consider that, on the extraordinary facts found by the judge, Inspector Bell was in breach of duty in law in not trying to help the plaintiff. The Chief Constable is vicariously responsible for that breach, but was not personally in breach.

I would dismiss the appeal.

SIR CHRISTOPHER SLADE

I have had the advantage of reading the judgments of May L.J. and Hirst L.J. in draft. I agree with both and do not wish to add to their reasons for dismissing this appeal.

HIRST L.J.

At the conclusion of the hearing I felt considerable anxiety whether, in the light of the authorities relied on by Mr. Robertson QC and in particular Hill v. The Chief Constable of West Yorkshire [1989] 1 AC 53, it was just and reasonable to impose liability on the defendant in the present case, seeing that the events occurred in an operational context, and involved an omission to act on Inspector Bell's part, not, as in Knightley v. Johns [1982] 1 WLR 349, a positive act of giving a negligent order to a subordinate officer.

Moreover, Swinney v. Chief Constable of Northumbria [1996] 3 AER 449, on which Mr. Hytner QC strongly relied, was a striking out case, and not conclusively decisive that the defendant was liable.

However, I have been persuaded by May LJ's judgment that in the quite exceptional circumstances of the present case, as outlined by him in the penultimate paragraph of his judgment, a duty of care did arise.

I also would therefore dismiss this appeal, and would only add that, as I said in Swinney's case, our decision should not be interpreted in any shape or form as undermining the general principle laid down in Hill's case.

Order: Appeal dismissed with costs; application for leave to appeal to House of Lords refused.