Determining Duty of Care in Negligence: Criminal Law Analysis

This essay delves into the critical concept of duty of care within the realm of negligence, a fundamental element required for establishing liability in tort law. It explores how courts determine the existence of this duty, particularly in complex scenarios involving the armed forces, the police, and instances of domestic violence. The essay examines key legal precedents, including Donoghue v Stevenson and the Caparo test, to illustrate the evolution and application of the duty of care. It analyzes how the courts balance public interest with the protection of individuals, especially in cases where governmental bodies or law enforcement are involved. Furthermore, the essay investigates the challenges in establishing a duty of care in cases of police misconduct and domestic violence, highlighting the significance of the European Convention on Human Rights in shaping legal outcomes. Ultimately, the essay provides a comprehensive analysis of the concept of duty of care and its application in contemporary legal disputes.

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Criminal Law

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While establishing a suit for negligence, it is important that the party against whom
the suit is filed must owe a duty of care. Without a valid duty of care, a person cannot
be held liable under a suit for negligence. In the case of armed forces, the police and
domestic violence, the method used by the court to determine the duty of care of the
parties are different.1 There are different common law judgements given by the court
that are focused on identifying the duty of care in parties, especially in the case of
armed forces, the police or domestic violence. The establishment of a duty of care is
difficult for the courts to establish in these scenarios due to which they rely on
previous common law judgements to ensure that they impose the liability of
negligence on the parties in a dispute.2 The objective of this essay is to evaluate the
concept of duty of care and evaluate the judgement of cases relating to armed
forces, the police, and domestic violence to determine how the court determines
whether a party owes a duty of care. This essay will evaluate the relevance of the
concept of duty of care in negligence and analyse the key issues faced by the court
while identifying this element.
In the case of tort law of negligence, the duty of care is a key element without which
the court finds it difficult to impose legal obligation on a party. This duty is defined as
an obligation of a party which is recognised by the court to ensure that they avoid
engaging in practices or take the appropriate standard to avoid unreasonable risk of
danger to others.3 The person who owes this duty has to make sure that reasonable
care is maintained through their acts or omissions to avoid foreseeable injuries to
others. In this regards, Donoghue v Stevenson4 is a relevant case. This case
provided the provisions for establishing the principles for modern law of negligence.
In this case, the court recognised the importance of the duty of care in a negligence
suit without which a legal liability cannot be imposed on the defendant. In this case,
the court pointed out two significant factors of the duty of care which are recognised
in the ‘neighbour test’ which include proximity relationship between parties and
reasonable foreseeability of the injury.5 The court provided that a person owes a duty
1 Arthur Best, David W Barnes and Nicholas Kahn-Fogel, Basic tort law: cases, statutes, and
problems (Wolters Kluwer Law & Business 2018).
2 Saul Levmore and Catherine M Sharkey, Foundations of tort law (LexisNexis 2012).
3 Julian Valasco, ‘A Defense of the Corporate Law Duty of Care’ (2014) 40 J. Corp. L. 647.
4 (1932) AC 562
5 Allan C Hutchinson, ‘Some What If Thoughts: Notes on Donoghue v Stevenson’ (2013) 51 Osgoode
Hall LJ 701.

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of care towards another party when there is a proximity relationship between the two
and the risks are reasonably foreseeable.
However, the concept of duty of care has undergone refinement due to a number of
common law decisions and cases involving parties such as armed forces and the
police. The application of ‘neighbour test’ is not suitable in many scenarios due to
which the court has recognised other tests to determine the element of duty of care.
A good example is the ‘Caparo test’ which was established by the court in the
judgement of Caparo Industries Plc v Dickman.6 As per this test, there are three
elements which must be considered by the court while determining the duty of care
of a party. These elements include reasonable foreseeability of risks, the relationship
of proximity and it must be just, fair and reasonable for the court to impose a duty of
care on the parties. However, the recognition of the duty of care is difficult in the
case of a police officer that engages in police misconduct. Police misconduct is
referred to any action which is performed by a law enforcement officer that is illegal,
unconstitutional or unethical based on the employment guidelines. Police misconduct
and negligence has become a major issue in the era where police administrators are
advocating closer with citizens in their communities in a number of scandals such as
illegal drug use, corruption, brutality, and others.7
The police officers cannot be sued by people for negligence because they have a
special position in public service and under the law which provides them protection
from negligence lawsuits. Since the police officers did not owe a duty of care, it
becomes difficult for courts to hold them liable for negligence.8 The court provided in
the case of Hill v Chief Constable of West Yorkshire9 that although the police can be
held liable for torts towards a person who suffered an injury directly as a result of
their act or omission; however, they did not owe a general duty of care. It was held
by the court in this case that it is in the interest of the public that the police offers did
not owe liable under negligence claims. Therefore, courts use different methods in
order to define and establish the duty of care for police officers. The principle of the
police did not owe a duty of care was untouched until 1998; however, the parties of
6 [1990] 2 AC 605
7 Charles F Sabel and William H Simon, ‘The Duty for Responsible Administration and the Problem of
Police Accountability’ (2016) 33 Yale J on Reg 165.
8 Andrew Robertson, ‘Policy-based reasoning in duty of care cases’ (2013) 33 (1) Legal Studies 119-
140.
9 [1987] UKHL 12

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the leading case of Osman v United Kingdom10 were able to successfully argue that
the Metropolitan Police violated their duty of care. In this case, the court found that
the parties have violated Article 6 of the European Convention of Human Rights.
The court provided that the blanket immunity given to the police officers in the case
of Hill v Chief Constable of West Yorkshire did not restrict the right of an individual to
access to a court. In Alexandrou v Oxford11 case, the claimant made a claim against
the police that it failed to secure the property from burglar and the argument was
accepted by the trial judge. However, the Court of Appeal provided that since there
was no direct contractual relationship exists between the Chief Constable and the
claimant, a duty of care did not exist.12 Therefore, the police can be held liable for
failing to maintain a duty of care if a contractual relationship is constructed between
them and the victim. In the judgement of Vellino v Chief Constable of Greater
Manchester13, it was held by the Court of Appeal that the police did not owe a duty to
prevent injury suffered by a party while discharging their duties.
Although there are many cases in which the court recognised that the police did not
owe a duty of care; however, there are many cases in which the court imposed a
duty on the police as well. In this regards, a relevant judgement was given by the
court in the case of Attorney General v. Hartwell (British Virgin Islands).14 In this
case, a policeman travelled to another island, entered a bar and opened fire using
the police service revolver. The plaintiff suffered an injury due to the shot; the
policeman was charged for unlawful and malicious wounding. It was argued by the
Attorney General in the appeal that no duty is owed in regarding who the police
entrusted firearms with and there was no proximity relationship between parties.15
However, the Privy Council rejected the argument by referencing to the judgement of
Home Office v Dorset Yacht Co Ltd16 and stated the police owe a duty in entrusting
officers with guns. Another relevant judgement was given by the court in the case of
Swinney v Chief Constable of Northumbria Police Force17 in which a document
10 [1998] ECRR 101
11 [1993] 4 All ER 328
12 Zoha Jamil, ‘Police Liability for Negligent Investigations: Unravelling the Blanket of Immunity’ (2013)
1 Birkbeck L Rev 303.
13 [2002] 1 WLR 218
14 [2004] UKPC 12
15 Birju Kotecha, Q&A Torts (Routledge 2014).
16 [1970] AC 1004
17 [1997] QB 464

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containing confidential information as stolen. The Court of Appeal provided that while
accepting the information, the police knew that it was sensitive and confidential
based on which they should have taken appropriate measures to avoid leaking the
information based on which the duty of care was breached by the police officers.
In the case of armed forces, the principle of ‘combat immunity’ protects the Ministry
of Defence (MoD) and soldiers from a duty of care; it means that the actions taken
by the MoD in the heat of battle cannot be questioned under the duty of care.18
Moreover, soldiers did not owe a duty of care to their fellow soldiers when they
engaged with the enemy. However, it did not mean that soldiers are exposed
recklessly or negligently to danger; they have the right to claim damages for injuries
which they face due to the negligence of the MoD. Furthermore, the court recognised
the duty of care of the MoD in three cases in which the claim of negligence was
made against the MoD because soldiers were injured or killed. These three cases
were Ellis v Ministry of Defence, Allbutt v Ministry of Defence and Smith & Ors v
Ministry of Defence.19 In this case, Trooper Andrew Julien and Lance Corporal
Twiddy were injured, and Corporal Albutt died as a result of the injuries which they
face during a friendly fire incident. It was alleged that the MoD failed to provide
available equipment and technologies which are necessary to protect troopers from
friendly fire. The court recognised the duty of care of the MoD by avoiding the
principle of combat immunity.
In the case of domestic violence, the question arises whether the police can be held
liable for failing to protect the victim of family violence. Although the principle of ‘no
duty of care’ for police officers recognised in Hill v Chief Constable of West Yorkshire
prevails in most cases; however, the court provided the recent judgement of Michael
& Ors v Chief Constable of South Wales Police & Anor20 that the police should owe a
duty of care when it knows that the person facing the domestic violence is in danger
of life of physical safety. This is also referred as intervener’s liability principle.
Although in this case, the court did not reject the application of the common principle
of no duty for police officers; however, it opened new areas to hold police liable
pursuant to the European convention on human rights.21 In the case of domestic
18 Anne Schwenkenbecher, ‘Collateral damage and the principle of due care’ (2014) 13 (1) Journal of
Military Ethics 94-105.
19 [2013] UKSC 41
20 [2015] UKSC 2
21 David Bayley, Governing the police: Experience in six democracies (Routledge 2017).

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abuse, the employers play a major role since they owe a duty of care towards
employees to make sure that they provide a safe and effective work environment to
them. As per this duty, employers have to take proactive actions to avoid abusive
behaviours in the workplace to protect the interest of individuals. Thus, under the
cases involving domestic violence, the duty of care of the police is difficult to
establish; however, the recent cases highlighted that they could be held liable for
breaching the European convention on human rights and a legal liability can be
imposed on them for failing to discharge their duties without a reasonable care.22
In conclusion, the duty of care is a relevant principle without which a party cannot be
held liable under a suit for negligence. The court relies on different tests while
determining the duty of care of parties. However, in the case of armed forces, the
police and domestic violence, the establishment of a duty of care is different. In the
case of the police, a duty is not owed towards prevention of injuries or providing
justice of parties; however, a duty can be imposed for trusting someone with firearms
and handling of confidential information. The duty of armed forces is eliminated by
the principle of combat immunity; however, the Ministry of Defence can be held liable
if they failed to provide soldiers appropriate equipment or technologies to protect
themselves. In the case of domestic violence, the employer owes a duty of care to
provide a safe working environment. However, it is difficult to establish the duty of
police officers in the case of domestic violence; however, a liability can be imposed
for breaching European convention on human rights. These cases show that the
courts rely on different common law principles while establishing the duty of care of
armed forces, the police and domestic violence.
22 Theodore P Cross et al. ‘Child welfare policy and practice on children's exposure to domestic
violence’ (2012) 36 (3) Child abuse & neglect 210-216.

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Bibliography
Books
Bayley D, Governing the police: Experience in six democracies (Routledge 2017)
Best A, Barnes DW and Kahn-Fogel N, Basic tort law: cases, statutes, and problems
(WKLB 2018)
Kotecha B, Q&A Torts (Routledge 2014)
Levmore S and Sharkey CM, Foundations of tort law (LexisNexis 2012)
Journals
Cross TP, Mathews, B, Tonmyr, L, Scott, D, and Ouimet, C, ‘Child welfare policy and
practice on children's exposure to domestic violence’ (2012) 36 (3) CAN 210-216
Hutchinson AC, ‘Some What If Thoughts: Notes on Donoghue v Stevenson’ (2013)
51 Osgoode Hall LJ 701
Jamil Z, ‘Police Liability for Negligent Investigations: Unravelling the Blanket of
Immunity’ (2013) 1 BLR 303
Robertson A, ‘Policy-based reasoning in duty of care cases’ (2013) 33 (1) LS 119-
140
Sabel CF and Simon WH, ‘The Duty for Responsible Administration and the Problem
of Police Accountability’ (2016) 33 Yale J on Reg 165
Schwenkenbecher A, ‘Collateral damage and the principle of due care’ (2014) 13 (1)
JME 94-105
Valasco J, ‘A Defense of the Corporate Law Duty of Care’ (2014) 40 J. Corp. L. 647
Cases
Alexandrou v Oxford [1993] 4 All ER 328
Attorney General v. Hartwell (British Virgin Islands) [2004] UKPC 12
Caparo Industries Plc v Dickman [1990] 2 AC 605

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Donoghue v Stevenson (1932) AC 562
Ellis v Ministry of Defence, Allbutt v Ministry of Defence and Smith & Ors v Ministry
of Defence [2013] UKSC 41
Hill v Chief Constable of West Yorkshire [1987] UKHL 12
Home Office v Dorset Yacht Co Ltd [1970] AC 1004
Michael & Ors v Chief Constable of South Wales Police & Anor [2015] UKSC 2
Osman v United Kingdom [1998] ECRR 101
Swinney v Chief Constable of Northumbria Police Force [1997] QB 464
Vellino v Chief Constable of Greater Manchester [2002] 1 WLR 218