Duty of Care Police Knightley v Johns & Ors [1982] 1 WLR 349 Court of Appeal As a result of Mr John's negligent

driving his car overturned in a tunnel. Two police officers on motorcycles arrived at the scene. The senior officer instructed them both to ride their motorcycles to the other side of the tunnel and close the entrance to the tunnel as he had forgotten to close it earlier. They took the decision of driving on through the tunnel on the wrong side of the road on a blind bend rather than going the long way round. Unfortunately one of the officers, Mr Knightly, was involved in a head on collision with an oncoming vehicle driven by Mr Cotton and sustained serious injuries. He brought an action against Mr Cotton, Mr John, the senior officer and the Chief Constable of West Midlands. The main contentious point was whether Mr. John remained liable or whether the actions of the other defendant's and the claimant amounted to a novus actus interveniens. Held: The senior officer's instructions and failure to close the entrance to the tunnel were negligent and broke the chain of causation. The claimant's decision in going through the tunnel was not negligent. Thus the claimant was entitled to full damages from the senior officer and Mr John was not liable.

Hill v Chief Constable of West Yorkshire Jacqueline Hill was the final victim of Peter Sutcliffe (the Yorkshire Ripper). He had committed 13 murders and 8 attempted murders over a five year period. Jacqueline' Mother made a claim against the Chief Constable on the grounds that the police had been negligent in their detection and detention of Sutcliffe. The defendant applied to have the claim struck out on the grounds that there was no cause of action since no duty of care was owed by the police in the detection of crime. Held: No duty of care was owed. Lord Keith: "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 in the present case [1988] Q.B. 60, 76, was right to take the view that the police were immune from an action of this kind." Alexandrou v Oxford (1993) CA [Tort negligence - duty of care no duty situations - public policy no duty owed in operational matters] D, the police failed to respond effectively when Cs alarm went off and a burglar escaped. Held: There was no sufficient "special relationship" between the shop owner and the police to create a duty of care. If there were a duty in this case, there would be a similar duty towards anyone reporting a crime against his person or property. C lost.

Osman v United Kingdom Case No 87/1997/871/1083 European Court of Human Rights A school teacher (Mr Paul Pagett Lewis) formed an unhealthy attachment to a 14 year old pupil (Ahmet Osman). He had given him money, taken photographs of him and followed him home. The police were informed but no action was taken. Things continued and the teacher

changed his name by deed poll to Paul Ahmet Osman. He accused Ahmet of having a homosexual relationship with a fellow pupil and tried to prevent them speaking to each other. He was then suspended from teaching and embarked upon serious harassment of Ahmet and his family. The police were called on several occasions and the teacher had told the police that he was unable to control himself and would do something which was criminally insane if he was not stopped. Eventually he followed Ahmet home one night and shot him and his father. Ahmet survived but unfortunately his father didn't. The teacher was convicted of manslaughter on the grounds of diminished responsibility. Ahmet's mother brought an action for the death of her husband and Ahmet brought an action for the personal injuries he suffered as a result of the police force's failure to apprehend the teacher earlier or to provide adequate protection. The defendant applied to have the claim struck out as disclosing no reasonable cause of action. The application was dismissed by the High Court. The defendant appealed. Held: The appeal was allowed and the claim struck out. Whilst the Court was satisfied that it was reasonably foreseeable that harm would result and that there was a sufficient closeness of proximity, the case of Hill v CC of Yorkshire had laid down, as a matter of public policy, a blanket immunity on the police from such actions. Osman appealed to the European Court of Human Rights contending that the blanket immunity from actions provided to the police by the House of Lords in Hill v CC Yorkshire was in breach of Art 6 of the European Convention of Human Rights. Art 6 provides that in determination of civil rights every person is entitled to a hearing by an independent and impartial tribunal established by law. Held: The Court found there had been a violation of Art 6 .The blanket immunity provided by Hill v. CC Yorkshire constituted a disproportionate restriction on the applicant's right of access to a court or tribunal. The substantive merits of the case could not be argued before a judge. It should always be open for claimants to put their case before a judge and a blanket rule which interfered with this right was not acceptable. The restrictive requirements of proximity were adequate to protect the police from the majority of claims. Swinney v Chief Constable of Northumbria Police Force [1997] QB 464 Court of Appeal Mr & Mrs Swinney were managers of a pub. They came across information relating to the identity of a person responsible for the unlawful killing of a police officer. They passed this information on to DC Dew who recorded the information. The document containing this information was later stolen from an unattended police car. Subsequently, Mr & Mrs Swinney received violent threats and suffered psychiatric injury as a consequence. They brought a negligence claim against the police for the psychiatric injury suffered. The claim was struck out by the district judge. The Swinneys appeal was allowed by Laws J. The police appealed to the Court of Appeal contending the facts did not give rise to a duty of care. Held:

The appeal was dismissed the case should continue to trial. By accepting the information, knowing of its confidential and sensitive nature, the police had assumed a responsibility to deal with the information in an appropriate manner. There were no policy reasons for denying the existence of a duty of care. Policy factors dictate that a duty should be owed 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

Brooks v Commissioner of Police for the Metropolis [2005] 1 WLR 1495 House of Lords Duwaine Brooks was present at the notorious racist killing of his friend Stephen Lawrence. Duwaine had also been subjected to abuse and attacks. He claimed that he had suffered post traumatic disorder as a result of handling the crime investigation and as a result of his own treatment as a witness and victim. He brought a claim against the Commissioner for the failure to provide him adequate protection, support and assistance which was generally afforded to victims of serious crimes. He suffered post traumatic stress disorder which he claimed was exacerbated by the treatment he received from the police. The Commissioner applied to have the case struck out on the grounds that there was no reasonable cause of action. The High Court granted the application holding that no duty of care arose. Brooks appealed to the Court of Appeal who allowed the appeal holding that a there was a sufficiently proximate relationship to impose a duty of care. The Commissioner appealed. Held: The appeal was allowed. The case of Hill v CC Yorkshire precluded the imposition of a duty of care. The court would not accept that the police owed any duty of care in these respects, although it did accept that an action was possible in respect of the claimants mistreatment by the police.

Z v United Kingdom (2001) A local authority failed to separate four children from their mother even though it was clear that the children were being subjected to an unacceptable level of abuse and neglect over a four-year period. The Court found that the authority had a positive obligation to remove the children as soon as they became aware of abuse that might amount to inhuman or degrading treatment. (Case summary taken from Human rights, human lives, Department for Constitutional Affairs, 2006.)

The European Court of Human Rights found that the United Kingdom had breached Article 3 of the Convention (protection against torture, inhuman or degrading treatment and punishment) and Article 13 (effective remedy before a national authority). By 12 votes to 5 the European Court of Human Rights concluded that the United Kingdom had not breached Article 6 (1) of the Convention. Reasoning on Article 6 (1): The first issue was whether there was ever a sufficient dispute about the applicants' "civil rights" at all. If there was not a genuine dispute then there would be no need for the applicants to be granted access to court to resolve it. On this point the European Court of Human Rights found that "at the outset of the proceedings [for negligence] there was a serious and genuine dispute about the existence of the right asserted by the applicants under the domestic law of negligence. Article 6 was therefore applicable." (paras. 89, 90) Consequently, the second issue was whether there had been a denial of access to court to resolve the dispute. [If there had been a denial of access to court the third question would have been whether this denial was proportionate to a legitimate aim.] On the second issue the majority of the European Court of Human Rights concluded, "The applicants may not claim that they were deprived of any right to a determination on the merits of their negligence claims. Their claims were properly and fairly examined in light of the applicable domestic legal principles concerning the tort of negligence. Once the House of Lords had ruled on the arguable legal issues that brought into play the applicability of Article 6 (1) of the Convention *i.e. issue one above+ the applicants could no longer claim any entitlement under Article 6 (1) to obtain any hearing concerning the facts. *S+uch a hearing would have served no purpose, unless a duty of care in negligence had been held to exist in their case. It is not for this Court to find that this should have been the outcome of the striking out proceedings since this would effectively involve substituting its own views as to the proper interpretation and content of domestic law." (para. 101).

Two important steps in reaching this conclusion on the second issue were: (1) The European Court of Human Rights stated, "the Court is not persuaded that the House of Lords' decision that as a matter of law there was no duty of care in the applicants' case may be characterised as either an exclusionary rule or an immunity which deprived them of access to court." (para. 96). Instead the Court characterised the House of Lords decision as a decision not to extend the tort of negligence into a particular novel area. The Court also stressed that the decision concerned only a narrow range of local authority powers and involved a careful balancing of policy reasons. The Court made the important statement that, "It is not enough to bring Article 6 (1) into play that the non-existence of a cause of action under domestic law may be described as having the same effect as an immunity, in the sense of not enabling the applicant to sue for a given category of harm." (para. 98). (2) The majority of the European Court of Human Rights thought that the decision in Osman v UK had been "based on an understanding of the law of negligence which has to be

reviewed in the light of the clarifications subsequently made by the domestic courts and notably the House of Lords." The majority does not expressly state that Osman v UK was wrongly decided, but that seems to be the implication. The dissenting minority (5 judges) thought that Osman was indistinguishable. Judge Thomassen (dissenting, and with the agreement of two others) stated "The majority's reasons for not following the Osman case are not, to my mind, convincing. There seem to have been no striking or significant changes in the law of negligence since that case and all relevant matters concerning the content of domestic law had been brought to the attention of the Court by the parties in the Osman case. I'm of the opinion that the conclusion under Article 6 in this case must be the same."

Duty of Care Child Care Service X v Bedfordshire County Council [Tort negligence - duty of care - development -breach proximity - no duty situations public policy local authorities statutory duties] D local authorities. Combined appeals (abuse cases, and education cases). C two children who alleged negligent treatment of claims of child abuse. In one case, the child was left with its parents and suffered further harm, in the other it was unnecessarily taken away from them. In the education cases the issue was whether special education needs had been met. Held: Where a statutory discretion was conferred on a public authority, nothing the authority could do within the ambit of that discretion was actionable at common law. If a new duty of care by local authorities were established, many more claims would be brought placing further strain on an already overstretched system. No duty of care would be imposed on local authorities fulfilling their public law duties towards children in need. C lost abuse case C lost education cases because the LA had no duty of care. But it was held that the LA could be liable, both directly and vicariously, for negligent advice given by their professional employees. Per curiam. The report of a psychiatrist instructed to carry out the examination of the child for the specific purpose of discovering whether the child has been sexually abused and (if possible) the identity of the abuser has such an immediate link with possible proceedings in pursuance of a statutory duty that such investigations cannot be made the basis of subsequent claims. Subequently: This case was referred to the ECHR and there was called Z and others v The United Kingdom (2001) UCHR. The UCHR found against the UK for not providing a remedy to the children. This case could not survive the Human Rights Act and was overturned by D v East Berkshire Community NHS Trust and others [2003] CA Phelps v Hillingdon London Borough

a local authority employed E an educational psychologist to assess C who was underperforming at school. E did not identify Cs dyslexia, C was thus not given the appropriate additional support, and C sued in negligence for the psychological and emotional harm she suffered. Held: Local education authorities could be vicariously liable for breaches by educational psychologists and teachers of their duty of care to pupils with special educational needs. Barrett (AP) v Enfield London Borough Council (1999) HL [Tort negligence - duty of care imposed on Local Authority for children in care] C was left psychologically damaged and an alcoholic when he left care of D a Local Authority. Held: Taking a child into care pursuant to a statutory power did not create a duty of care. However, Cs allegations were largely directed to the way in which the powers of the local authority were exercised, a duty of care was owed and was broken. Whether it was just and reasonable to impose a liability for negligence had to be decided on the basis of what was proved. Which except in the clearest cases, required an investigation of the facts. C won W v Essex County Council (1998) HL The claimants were foster parents for adolescent children and also had four children of their own aged 8-12. They had expressly told the council and social worker that they did not want a child who was known to be or suspected of being a sexual abuser. However, a 15 year old boy was placed with them. He had been cautioned by the police for a sexual offence and was under investigation for raping his sister. This information was known by the council and social worker but was not communicated to the claimants. The claimants allege that the boy committed serious sexual offences against their children as a consequence they and their children suffered psychiatric injury. They brought an action against the council claiming their negligence in placing the child with them against their wishes and without informing them of the boys background caused the psychiatric injuries suffered by them and their children. The defendants applied to have the claims struck out as giving rise to no duty of care. The trial judge struck out the parents claim but refused to strike out the claim in respect of the children. The Court of Appeal held no duty was owed since the parents were secondary victims and did not satisfy the criteria set out in Alcock v Chief Constable. The claimants appealed to the House of Lords. Held: The appeal was allowed. The House of Lords refused to strike out the claims. Lord Slynn stated the law regarding psychiatric injury was still developing and the categories of primary victims are not closed. It was arguable that the claimants may be primary victims based on a feeling of responsibility in unwittingly bringing the abuser in to the house. Furthermore the concept of the immediate aftermath of the incident has to be assessed on the particular factual situation. Therefore the issues should go to trial.

[Tort negligence - duty of care no duty situations - statutory duty - duty of care, to whom] D, the council placed a known sex offender with foster parents C. Cs children were abused. C made it clear that they were anxious not to put their children at risk by having a known sex abuser in their home, the social worker and D knew that and also knew that the boy placed had already committed an act or acts of sex abuse. The risk was obvious and the abuse happened. Held: It was plainly arguable that there was a duty of care owed to the parents and a breach of that duty by the defendants. C won.

JD v East Berkshire Community Health NHS Trust and others [2005] 2 WLR 993 Three conjoined appeals raising similar issues. 1. JD - the claimant was wrongly accused of having Munchausens Syndrome by proxy and making her child ill. The child in fact suffered from multiple severe allergies 2. RK the claimant was wrongly accused of sexually abusing his daughter. The daughter had injured herself riding her bicycle and she also had Schambergs disease which involves purple patches on the skin. 3. MK the claimant was wrongly accused of physically abusing her daughter resulting in a broken leg. The daughter suffered brittle bones. All claimants suffered psychiatric injury following the allegations and it was held that no duty of care was owed in each claim. The Court of Appeal upheld the decisions. The claimants appealed to the House of Lords. Held: The appeals were dismissed. Healthcare professionals and social service professionals do not owe a duty of care to parents in their decision making with regards to matters affecting a child. To impose a duty would be an extension of situations in which a duty was owed. It would be impractical to impose a duty in relation to the suspected perpetrator of a crime and the duty would conflict with that of the victim.
D v East Berkshire Comm NHS Trust Parents sued for compensation for psychiatric harm resulting from unfounded accusations of child abuse. Held: X v Bedfordshire County Council [1995] (which denied a duty of care based on the "fair, just and reasonable" test) could not survive the Human Rights Act. A duty of care could sometimes be owed to a child suspected of being abused. But each case was to be determined on its individual facts. Where child abuse is suspected and removing the child from the parents was justified, no duty of care was owed to the parents.

Parents sued for compensation for psychiatric harm resulting from unfounded accusations of child abuse. Held: X v Bedfordshire County Council [1995] (which denied a duty of care based on the "fair, just and reasonable" test) could not survive the Human Rights Act. A duty of care could sometimes be owed to a child suspected of being abused. But each case was to be determined on its individual facts. Where child abuse is suspected and removing the child from the parents was justified, no duty of care was owed to the parents.