Tort Law: Principles Limiting Actions in Negligence against Public Bodies - Essay Example

?Critically assess the rule in Hill v Chief Constable of West Yorkshire [1989] AC 453 and consider both the justifications the courts have offered for maintaining the rule; and how the rule compares to other principles limiting actions in negligence against public bodies. Introduction Public bodies have specific duties to protect or serve the public. However, the extent to which public duties can be interpreted to extend to a private duty of care under the tort of negligence has been a controversial issue.1 In particular, the House of Lords established the exclusionary rule in Hill v Chief Constable of West Yorkshire ruling that the police did not owe a duty of care to the plaintiff on the grounds that there was insufficient proximity and for public policy reasons.2 This essay critically analyses the exclusionary rule in Hill and identifies how courts have justified maintaining the rule. This essay also analyses how the exclusionary rule compares to other principles used by the court to limit claims in negligence against public bodies. The Rule in Hill v Chief Constable of West Yorkshire In Hill, the plaintiff’s son was the last victim of a serial killer known as the Yorkshire Ripper. The plaintiff claimed that had it not been for police negligence in detecting and apprehending the Yorkshire killer, her daughter would not have been murdered by him. The court ruled that the police do not owe the public a general duty of care in terms of apprehending criminals that are not known, unless failure to exercise care results in more risks. Moreover, police do not owe a general duty of care to individuals except in circumstances where there is proximity of relationship between the police and an identified victim.3 Lord Keith acknowledged that there may be a number of circumstances in which there may be a duty of care to the general public in the conduct of a number of activities that may require a higher standard of care. However, it is unreasonable to expect this kind of general duty to be applied to the activities that police conduct. Lord Keith went on to state: 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.4 It would therefore appear that in formulating and justifying the exclusionary rule, there is an assumption that in the investigation and suppression of crimes, police put forth their best efforts and any missteps are regarded as excusable errors. Such an assumption is unrealistic, but at the same time, police are accountable for intentional torts in terms of assault and battery. In such instances, proximity is clearly established. The court was very careful to emphasize that the exclusionary rule would apply only in some instances.5 Lord Keith clearly stated that it would be unreasonable to impose a duty of care I “some instances” as this “may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind”.6 The court explained that the specific instances where it would be unreasonable to impose liability on police would be instances in which police were conducting investigations and suppressing crimes. Lord Keith specifically stated that the likelihood of the police conducting their duties with a “defensive frame of mind” when conducting investigations “cannot be excluded”.7 Thus liability could not be imposed when police were conducting investigations and this part of the ruling was prefaced by the presumption that police conduct their investigations putting forth their best efforts. The justification for the exclusionary rule may therefore be counterproductive. In safeguarding against the risk that police may become too distracted by the prospects of being found liable for negligence in the performance of their public duties in the detection and suppression of crime, the court failed to take account of a likely negative consequence of the rule. Police may become too comfortable with the promise of escaping liability and in doing so, may very likely be negligent in the detection and suppression of crime. In fact, the exclusionary rule has been referred to as a grant of immunity to police in the execution of their duties to suppress and detect crime.8 In fact, Lord Keith went so far as to state that the police were immune from these kinds of actions.9 Lord Keith set out a number of reasons for policy immunity in relation to a duty of care to the public in their investigative duties and activities. According to Lord Keith, if a general duty of care was imposed on the police relative to investigations, they would be open to claims for failing to apprehend a criminal sooner than they did or for failing to apprehend a criminal at all with the result that the criminal continued to commit crimes. The danger with allowing these kinds of claims is that some claims might necessitate going “deeply into the general nature of a police investigation”.10 This would be entirely too unrealistic and unfair since, an investigation of a crime: 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 pursue and what is the most advantageous way to deploy the available resources.11 As Lord Keith stated, in order to establish liability for negligence it would be necessary to investigate the police decisions and the manner in which they conducted their investigations. Obviously the police would devote a great deal of time and resources in preparing to defend these kinds of claims and in doing so, police manpower would be diverted to defending claims and safeguarding against the possibility of claims when that manpower could be put to better use in the public interests: the suppression of crime.12 As Lord Keith stated: 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.13 It can be argued that the court’s ruling unrealistically anticipates that police conduct their duties flawlessly and carefully. Based on this assumption, it is also assumed that the pressure of prosecution would interfere with police diligence in the investigation of their duties. The court did not think that the imposition of liability and therefore accountability would ensure that the police conducted their duties carefully and diligently to avoid public scrutiny of their investigations. If police are conducting their investigations as carefully as the court appears to think, they would not have to divert attention to preparing a defence. They would be able to stand on the record. McIvor argues that the Hill ruling indicated that the police were viewed through “rose tinted glasses” when “public inquiries” have suggested that there have been a number of failings.14 Since the ruling in Hill the UK passed the Human Rights Act 1998 and in doing so implemented the European Convention on Human Rights 1950 (ECHR). The immunity granted police under the exclusionary rule can be surpassed by a right of action against public authorities under the Human Rights Act 1998 and by virtue of the burdens and positive duties imposed on member states to protect fundamentals rights and freedoms expressed in the ECHR.15 As a result, the exclusionary rule has been criticized by the European Court of Human Rights (ECtHR). In Osman v UK the ECtHR ruled that the exclusionary rule as expressed in Hill, disproportionately restricts individual rights.16 The ECtHR similarly criticised the exclusionary rule in Bubbins v UK ruling that the UK in denying the plaintiff an effective remedy against the police had violated Article 13 of the ECHR.17 Article 13 of the ECHR provides that: Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.18 This ruling together with the implications of the Human Rights Act and therefore Article 13 of the ECHR, explain why subsequent cases may have essentially ignored the exclusionary rule and allowed claims against the police. For example in L (A Minor) v Reading BC and Chief Constable of Thames Valley Police [2001] 1 WLR 1575 the Court of Appeal ruled that it could be argued that the police officer had the necessary proximity to a possible victim so that a duty of care arose during a police interview. The court also said that it could be argued that the police owed a duty of care to a father believed to have abused a child.19 In another case, the Court of Appeal ruled that the police were under a duty of care to take steps for preventing harm to witness who had been threatened and subsequently killed. The court of appeal also ruled in the same case that the police were in breach of their duty of care and had contravened Article 2 of the ECHR (the right to life).20 This case however, can be distinguished from the Hill case in that proximity was clearly established in that the witness had been threatened and the police had a duty to protect the victim. Moreover, the House of Lords’ ruling leaves open the possibility that a duty of care may be imposed in some circumstance. The House of Lords ruled that the general duty of care will only arise where failure to exercise care results in more risks. In Smith v Constable of Sussex, the Court of Appeal held that a negligence complaint against the police could not be quashed in the case before it. In this case, police had been aware of threats to the life of the plaintiff and had failed to take measures for protecting the plaintiff. The plaintiff had informed the police of the threats which were particularly aggressive and the police, despite having probable cause and the evidence did not apprehend the person making the threats. The court of first instance had dismissed the claim of negligence based on the exclusionary rule. The court of first instance ruled that the plaintiff was a member of the public and the police under the exclusionary rule did not owe him a duty of care. The Court of Appeal disagreed and ruled further than in claims against the police for negligence must now be viewed with respect to the right to life contained in Article 2 of the ECHR.21 Therefore the immunity granted to police under the exclusionary rule in Hill was clearly not intended to be absolute. Whether or not the Human Rights Act 1998 and the ECHR together with criticisms of the ECtHR influenced subsequent rulings to find that the police did in certain cases owe a duty of care, the exclusionary rule as expressed in Hill left open the possibility that police could in certain circumstances be held liable for negligence. Other Principles Limiting Negligence Claims against Public Bodies The courts have used a number of other principles to limit negligence claims against public bodies, even where negligence and liability were established under the neighbourhood principle expressed in Dongahue v Stevenson. In Dongahue, the neighbourhood principle establishes that a duty of care is owed to anyone who ought to come within the reasonable contemplation of an individual in acting or omitting to act.22 The court in Home Office v Dorset Yacht Co. Ltd. used the principle of foreseeability to restrict a claim of negligence against the Home Office for boys who escape from a juvenile home and damages a number of yachts at the plaintiff’s club. Like the ruling in Hill, the court in Home Office ruled that in order for liability to be imposed for negligence, there must be proximity of relationship between the public body and the plaintiff that separates the plaintiff from the public at large. Secondly, the plaintiff must be someone that the public body could reasonable foresee would be harmed should it not take reasonable care to prevent an inmate escaping. Moreover the damages caused must be reasonably foreseen by the public body.23 Unlike, Hill, Home Office did not grant immunity to the Home Office, but instead set specific guidelines that take into account the fact that should the Home Office owe a duty of care to the general public, there would be no end to claims in the event an escapee of a group of escapees manages to cause substantial damages to a large number of citizens. Lord Wilberforce established a two-step test Anns v Merton London Borough Council. In Anns involved a claim in negligence against a local authority in respect of negligence in the inspection of construction plans. In finding that a duty of care exists and that there is proximity between a public body and members of the public, Lord Wilberforce did state that in establishing liability for negligence the court must apply a two-step exercise. First it must determine whether or not a duty of care existed pursuant to the neighbour principle and secondly the court must consider whether or not there are any policy considerations or any other reasons why a duty of care should not be applied to the defendant.24 Obviously, the two-step test allowed courts such as the House of Lords in Hill to determine that in a claim against a public body, there are public policy considerations that can limit or prevent claims against public bodies. The principle of just and reasonable also emerged as a means of limiting and in some cases preventing claims against public bodies. The principle of just and reasonable was articulated by Lord Keith in Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co. Ltd. In this case Lord Keith said while it is necessary to prove that there is proximity of relationships between the plaintiff and the defendant in order to establish the existence of a duty of care: The scope of the duty must depend on all the circumstance of the case...so in determining whether or not a duty of care of a particular scope was incumbent...upon a defendant it is material to take into consideration whether it is just and reasonable that it should be so.25 Hill ruled however, that proximity may change the grant of immunity by stating that police do not owe a duty of care unless there is proximity between the police and the victim. Governors however, determined that even where there is proximity, there can be no claim if it is not just and reasonable to impose a duty of care. Lord Bridge expounded on the just and reasonable test in Caparo Industries PLC v Dickman [1990] 1 All ER 568 as follows: ...in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of ‘proximity' or ‘neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the party for the benefit of the other.26 Caparo obviously left open the possibility that each case would be considered on its own facts and circumstances. This was accomplished by ruling that where proximity can be identified, the case for imposing a duty of care does not end there but can be denied if the facts and circumstances justified it. At the very least, this leaves open the possibility that the conduct of public bodies would be examined in order to determine if it was fair, just and reasonable to impose a duty of care. However, in Hill, the court was against having the conduct of police open to public scrutiny and found that police were immune from claims of negligence in the execution of their investigative duties as imposing such a duty would hamper police in the suppression of crime for the public’s own interests and safety. The principle of proximity was used to restrict liability against hospital authorities in Palmer v Tees HA and Hartlepool and East Durham NHS Trust. In Palmer, the plaintiff’s child was killed by a psychiatric patient and the Court of Appeal held that that the health authorities did not owe a duty of care in relation to the child or her mother. The Court of Appeal justified the decision on the grounds that there was a lack of proximity in relation to a child who was killed by a psychiatric outpatient. The court applied the Caparo test and distinguished the case from Dorsett claiming that where the risk of damage to yachts in the vicinity of the juvenile home were foreseeable, the harm in this case was not foreseeable. More importantly the court applied the Hill rationale ruling that there must be proximity and the victim must not only be known, but must also be identifiable. The court also took into account the fact that the hospital authority would not have been in a position to predict the outpatient’s attack and therefore would not have been able to take the necessary steps to prevent harm to the plaintiff’s child.27 It therefore follows that although a life was taken, it was not fair, just and reasonable to expect the hospital authorities to exercise care to avoid the unidentified child’s death just as it was not reasonable to expect the police to take steps in Hill to avoid the death of the plaintiff’s child. Conclusion The ruling in Hill granted immunity to the police in relation to claims of negligence. The rationale for the ruling was that it was for protection of the public in that police could not effectively serve the public’s interest if they were distracted by possible negligence claims. Courts have demonstrated a willingness to protect public bodies in general from negligence claims and have rationalized this protection by the application of principles of tort law (proximity and foreseeability) and public policy considerations. However, since the implementation of the Human Rights Act 1998 and the ECHR, the court’s willingness to grand immunity to public bodies or to restrict actions in negligence against public bodies is no longer straightforward. The courts now have a duty to interpret and enforce the ECHR. Thus the blanket and limited immunity accorded public bodies by the courts is not absolute. Bibliography Journal Articles Giliker, Paula.‘Osman and Police Immunity in the English Law of Torts,’ (September 2000) 20(3) Legal Studies, 372-392. McIvor, Claire. ‘Getting Defensive About Police Negligence: the Hill Principle, the Human Rights Act 1998 and the House of Lords.’ (March 2010) 69(1) Cambridge Law Journal, 133-150. Shircore, Mandy. ‘Police Liability for Negligent Investigations: When Will A Duty of Care Arise?’ (2006) 11(1) Deakin Law Review, 33-62. Textbooks Harpwood, V. H. Modern Tort Law, (Abingdon, Oxon: Routledge-Cavendish, 2009). Cases Anns v Merton London Borough Council [1977] 2 All ER 492. Bubbins v UK Application No. 50196/99. Caparo Industries PLC v Dickman [1990] 1 All ER 568. Dongahue v Stevenson [1932] AC 562. Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co. Ltd. [1984[ 3 All ER 529. Hill v Chief Constable of West Yorkshire [1989] AC 53. Home Office v Dorset Yacht Co. Ltd. [1970] AC 1004. L (A Minor) v Reading BC and Chief Constable of Thames Valley Police [2001] 1 WLR 1575. Osman v UK [1999] 29 EHRR 245. Palmer v Tees HA and Hartlepool and East Durham NHS Trust [1999] Lloyd’s Rep. Med. 351. Smith v Constable of Sussex [2008] EWCA 39. Van Colle v Chief Constable of Hertfordshire [2007] EWCA civ 325. Statutes European Convention on Human Rights 1950. 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