Response of Courts in Denying Claims Against the Police

LAW SCHOOL
COURSEWORK COVER SHEET
MODULE NAME: TORT LAW
MODULE CODE: LA5006
ASSESSMENT NUMBER: J32548
WORD COUNT: 1634
QUESTION
AN AREA WHERE POLICY HAS LONG PLAYED A LEADING ROLE IN THE DUTY OF CARE QUESTION IS
IN ACTIONS AGAINST THE POLICE .
C RITICALLY DISCUSS THE RESPONSE OF THE COURTS IN DENYING CLAIMS AGAINST THE POLICE ,
BUT INCLUDE DISCUSSION OF THE CIRCUMSTANCES IN WHICH A DUTY MAY, IN FACT, BE
RECOGNISED .
ILLUSTRATE YOUR ANSWER WITH CASE LAW ; REFERENCE TO SCHOLARLY ARTICLES WILL
ENHANCE YOUR RESPONSE.
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Under tort law, there are three main elements that are examined to determine
whether the defendant in question has carried out a negligent act. The elements of
proximity, foreseeability and policy are essential requirements established by case
law in deciding if the defendant in question owed a duty of care. Special groups like
the police are subject to policy considerations such as loss allocation and the
potential to trigger defensive policing that can heavily influence the outcome of
cases. Courts predominately take an objective approach by determining if creating a
duty of care would be beneficial to the public’s interest.
Winfield described negligence as “a breach of a legal duty to take care which results
in damage to the claimant” . This existence of a legal duty developed from Lord1
Atkins ‘neighbour principle’ established in the case of Donoghue v Stevenson . The2
doctrine held that under tort law, one must take reasonable care to avoid acts or
omissions which would reasonably foresee injury to a neighbour - someone who is
close and directly affected by the negligent act. This creates an objective test in
which the defendant examines what a reasonable person would have foreseen as
opposed to what they themselves foresaw. It was held that the manufacturing
company owed a duty of care as reasonable foresight and proximity were satisfied in
the ruling that it didn’t have to be foreseeable that ingesting the decomposed snail
would cause injury Mrs Donoghue, but it would any other consumer.
Vera Bermingham and Carol Brennan, Tort Law Directions, 5th edn (Oxford: Oxford University1
Press, 2016)
Donoghue v Stevenson [1932] AC 5622
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The test from Donoghue however was not without criticism. Lord Atkin’s definition3
was open to wide interpretation and over time became apparent that any cases
brought upon the courts involved situations where unless policy considerations were
required, no duty of care would be found. Lord Wilberforce addressed this gap in the
case of Anns v Merton London Borough (1978) where he broadened the neighbour4
principle by creating a two part test addressing whether there was sufficient proximity
between the claimant and defendant, following any policy considerations for and
against recognising a duty to care. The Anns test amplified the original basis of5
negligence by shifting how policy influenced decisions by separating notions from the
neighbour principle. However the excess power and discretion invoked on judges6
led to overruling the test by relying on previous precedents (as in the case of Murphy
v Brentwood District Council [1990] ) to expand the application of duty of care.7
Caparo Industries plc v Dickman (1990) extended the two stage test further from8
foreseeability and proximity to discussing if it was fair, just and reasonable for a duty
to be imposed. Today, this has been accepted as the basic test as it analysing not
only if a duty of care exists, but whether one should be based upon the facts brought
forward to the courts.
The development of the principles towards the application of duty of care adheres to
the use of policy influences. Policy considerations are largely based on the ‘time,
Donoghue v Stevenson [1932] AC 5623
Anns v Merton London Borough [1978] A.C. 7284
Anns v Merton London Borough [1978] A.C. 7285
Chris Turner, Unlocking Torts, 4th edn (Oxon: Routledge, 2014)6
Murphy v Brentwood District Council [1991] 1 AC 3987
Caparo Industries plc v Dickman [1990] 2 AC 6058
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trouble and expense’ that would arise from defending cases taking into account the9
flood of claims (floodgates) - that would trigger the re-opening of cases with
insufficient or ‘reasonable’ cause.
The influence of policy is embarked within the Caparo test, applied in the Alcock v
Chief Constable of South Yorkshire Police . In a moral consideration it seems10
unreasonable that no compensation was given to claimants possessing a higher
degree of proximity than others, for instance parents or spouses of those deceased
compared siblings and fiancés. The rulings conceded with policy reasons that
floodgates would arise following any acknowledgment of negligence in one case
alone. This accompanied White v Chief Constable of South Yorkshire (1988)11
where police officers claimed for the psychiatric damage incurred on duty. Lord
Steyn highlighted how police officers “have the benefit of statutory schemes” as a
form of compensation and therefore would be repugnant to allow liability when
relatives were denied damages. Both cases illustrate the extent to which policy
influences the decision of the court to mitigate any potential floodgates that in turn,
would distract authorities from their main functions from using time, money and
resources to settle any arising disputes.
In most areas of negligence under tort law it is found apparent that finding a duty of
care is not the same as finding liability. Negligence cases towards police officers can
either address operational matters where liability can be found within carry out their
Vivienne Harpwood, Tort Law, 5th edn (London: Cavendish Publishing Limited, 2005)9
Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5, [1992] 1 AC 31010
White v Chief Constable of South Yorkshire [1988] 3 WLR 150911
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