Today’s correspondent

… was at a set of red traffic lights when a stolen vehicle crashed into the rear of my four-wheel drive at high speed. The NSW Highway Patrol was right behind. About 50 metres down the road the suspects jumped out of the car and were eventually apprehended. The

Stolen car was insured, I wasn’t. The suspects stole the car at 5.30am had been evading police all morning. The accident occurred at 12.30pm. Police, who did a great job, have their suspects but my family are without a vehicle. Damage has totalled $10000+.

We have been advised that if the DPP lodges a criminal compensation order on our behalf that would be the best course of action but getting the money from the accused is another problem as I would need his address to file a statement of claim, but police shouldn’t release this information.

Could police be accountable?

Before 8 February 2018, I would have been inclined to say that there was no prospect of pursuing police on this matter.

First courts are reluctant to impose liability on one person (in this scenario, the police) for the criminal conduct of another (in this scenario, the thief) (Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254).  Further the have been many cases that limits the duty of care that police owe to others with respect to how they perform their duties.  Police act for the benefit of the community and by the very nature of their tasks can cause harm to others eg by arresting people who are later found to be ‘not guilty’ or not arresting people who then proceed to commit offences. The leading case on this point is the UK case Hill v Chief Constable of West Yorkshire [1989] AC 53 where police did not owe a duty of care to a victim who was murdered by the “Yorkshire Ripper”.

In a newsletter (Duty of Care – UK decisions, May 2015) the Victorian Government Solicitor’s Office said:

Two recent judgments in the United Kingdom have declined to impose a duty of care on police officers to protect individuals from harm by third parties. In Michael and others v Chief Constable of South Wales Police and Chief Constable of Gwent Police [2015] UKSC 2 a majority of 5-2 of the Supreme Court held that the police do not generally owe a common law duty to exercise reasonable care to safeguard victims or potential victims of crime, except in cases where there has been a representation and reliance. In Robinson v Chief Constable of West Yorkshire Police [2014] EWCA Civ 15, the England and Wales Court of Appeal held that the police did not owe a common law duty of care to a bystander who was injured during the arrest of a drug dealer.

Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4

So, what happened on 8 February?  On that day, the Supreme Court of the United Kingdom (the equivalent of the High Court of Australia) handed down its decision in Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4.   In this case the 76-year-old plaintiff was injured (at [1]):

… when she was knocked over by a group of men who were struggling with one another. Two of the men were sturdily built police officers, and the third was a suspected drug dealer whom they were attempting to arrest. As they struggled, the men knocked into Mrs Robinson and they all fell to the ground, with Mrs Robinson underneath. She suffered injuries as a result.

In the Court of Appeal, Hallett LJ (with whom Arnold J and Sullivan LJ agreed) said this case was “a paradigm example of why the courts are loath to impose a duty towards individual members of the public on the police engaged in their core functions” ([16]), presumably because it would constrain police too much if when deciding if and when to arrest a drug dealer they had to think about their possibility liability to passers-by who might be affected by unpredictable, but foreseeable consequences. Hallett LJ also took the view (at [17]) that even if the police did owe a duty of care to Ms Robinson it was in fact the offender, who was struggling with police that caused her injuries, not the police officers.  One can see the analogy with the scenario posed by my correspondent.  The police are engaged in a pursuit of a stolen car and the need to arrest the offenders relates not only to their stealing of this car but the very risk to others that did eventuate.  It may restrain police too much if they have to consider potential liability to third parties and in any event the damage was caused by the offender, not the police.

The Supreme Court took a different view.  Lord Reed (with whom Lady Hale and Lord Hodge agreed) reviewed the English law on the liability of public authorities and police in general.   With respect to public authorities he said (at [32]-[35] (referenced omitted):

At common law, public authorities are generally subject to the same liabilities in tort as private individuals and bodies… Accordingly, if conduct would be tortious [ie negligent] if committed by a private person or body, it is generally equally tortious if committed by a public authority… That general principle is subject to the possibility that the common law or statute may provide otherwise, for example by authorising the conduct in question… It follows that public authorities are generally under a duty of care to avoid causing actionable harm in situations where a duty of care would arise under ordinary principles of the law of negligence, unless the law provides otherwise.

On the other hand, public authorities, like private individuals and bodies, are generally under no duty of care to prevent the occurrence of harm… “the common law does not generally impose liability for pure omissions”. This “omissions principle” has been helpfully summarised by Tofaris and Steel, “Negligence Liability for Omissions and the Police” (2016) 75 CLJ 128:

“In the tort of negligence, a person A is not under a duty to take care to prevent harm occurring to person B through a source of danger not created by A unless (i) A has assumed a responsibility to protect B from that danger, (ii) A has done something which prevents another from protecting B from that danger, (iii) A has a special level of control over that source of danger, or (iv) A’s status creates an obligation to protect B from that danger.”

For readers of this blog that means that an agency, whether it’s a police force or a fire brigade, is not liable if it fails to protect a person from harm (hence explaining why fire brigades are generally not liable for failing to protect people from fire and why police were not liable for failing to prevent Mr Veenstra’s suicide in Stuart v Kirkland-Veenstra [2009] HCA 15 discussed often in posts on this blog).  That is because a government authority, like anyone, is not usually under a duty to prevent harm from circumstances not caused by them.  But an agency will be liable if it negligently causes harm in circumstances where anyone else would be liable, so the driver of a fire appliance or a police car will be liable if he or she negligently collides with another driver.  Causing harm is different to failing to prevent it.

Having done that general analysis, Lord Reed turned to police and concluded (at [69]) that there is no special immunity for police. The reason that they are not, and have not been, liable for failing to prevent harm

… is based on the application of a general and long-established principle that the common law imposes no liability to protect persons against harm caused by third parties…

The distinction between careless acts causing personal injury, for which the law generally imposes liability, and careless omissions to prevent acts (by other agencies) causing personal injury, for which the common law generally imposes no liability… is inherent in the nature of the tort of negligence… The central point is that the law of negligence generally imposes duties not to cause harm to other people or their property: it does not generally impose duties to provide them with benefits …

His Honour concluded (at [70]):

… it follows that there is no general rule that the police are not under any duty of care when discharging their function of preventing and investigating crime. They generally owe a duty of care when such a duty arises under ordinary principles of the law of negligence, unless statute or the common law provides otherwise. Applying those principles, they may be under a duty of care to protect an individual from a danger of injury which they have themselves created, including a danger of injury resulting from human agency… . Applying the same principles, however, the police are not normally under a duty of care to protect individuals from a danger of injury which they have not themselves created, including injury caused by the conduct of third parties…

Applying those principles to the case before him, Lord Reed found that the risk of the defendant resisting arrest was well known and it was why the first police officer waited for back-up before attempting to make the arrest.  It was therefore foreseeable that if an arrest was attempted on ‘a moderately busy shopping street in a town centre’ pedestrians ‘especially physically vulnerable pedestrians, such as a frail and elderly woman … might be knocked into and injured’ ([74]).

Finding a duty of care does not end the inquiry. The question then must be whether there had been a breach of duty.  The trial judge had found that the police were negligent.  The Court of Appeal had decided that they were not.  The Supreme Court recognised the need for caution in finding negligence by police acting in operational situations.  Lord Reed said (at [75]):

The Court of Appeal was correct to emphasise the importance of not imposing unrealistically demanding standards of care on police officers acting in the course of their operational duties. That is most obviously the case where critical decisions have to be made in stressful circumstances with little or no time for considered thought. This point has long been recognised. For example, in Marshall v Osmond, concerned with a police driver engaged in the pursuit of a suspect, Sir John Donaldson MR stated… that the officer’s duty was to exercise “such care and skill as is reasonable in all the circumstances”. He went on to state that those “were no doubt stressful circumstances”, and that although there was no doubt that the officer made an error of judgment, he was far from satisfied that the officer had been negligent…

Further, at times, taking ‘reasonable care’ may expose members of the public to risk (at [76], emphasis added):

… there may be circumstances which justify the taking of risks to the safety of members of the public which would not otherwise be justified. A duty of care is always a duty to take such care as is reasonable in the circumstances.

However, in this case the trial judge had considered all those issues and for reasons that need not be explored here had concluded the action of the arresting officers was not reasonable in the circumstances.  There being no error in the reasoning, it was not open to the Court of Appeal to reverse that decision.  The Supreme Court did not therefore conclude that the police were or were not negligent, only that the matter had been decided at trial and, in the absence of error, there was no reason to set aside the judge’s decision.

Lord Mance agreed that the police should be liable.  His reasoning was different but the difference need not be explored here.  Suffice to say he concluded (at [97]):

… we should now recognise the direct physical interface between the police and the public, in the course of an arrest placing an innocent passer-by or bystander at risk, as falling within a now established area of general police liability for positive negligent conduct which foreseeably and directly inflicts physical injury on the public…

The final judgement was from Lord Hughes. He disagreed that the line between when police owed a duty of care and when they did not could not be drawn by referring to whether or not their alleged negligence lay in either an action or omission.  There were sound policy reasons to provide police immunity (at [118] and [120] emphasis added):

The ultimate reason why there is no duty of care towards victims, or suspects or witnesses imposed on police officers engaged in the investigation and prevention of crime lies in the policy considerations … and, in the end, in the clear conclusion … that the greater public good requires the absence of any duty of care…

Thus whilst there remains a duty of care imposed on police officers not by positive action to occasion physical harm or damage to property which ought reasonably to be avoided, there is no duty of care towards victims, witnesses or suspects in the manner of the investigation of offences or the prevention of crime. That also means that there is no duty of care to protect individuals from harm caused by the criminal acts of third parties.

The case before him was however ‘one of positive act, namely arresting the suspect, which directly caused physical harm’ and therefore there was a duty of care owed. Given the trial judge’s findings of negligence it followed that the liability of police was established.

Discussion

It seems to me the parallel with my correspondent’s case is obvious. The police were attempting to arrest, and prevent the escape of the driver of the stolen vehicle just as the police in Robinson were attempting an arrest and prevent the escape of the drug dealer.  Had my correspondent been struck by a police car the question of a duty of care would not have been in issue.  As it was my correspondent was struck by the thief.

On one view the incident was akin to the struggle but that would be debatable.  The Court in Robinson did not have to consider what would have happened had the offender broken away from police and run into the pedestrian/plaintiff.

It follows that my correspondent could argue that this case is akin to Robinson, that it was foreseeable that by engaging in a pursuit other road users would be put at risk and the act of the pursuit was a positive action that created the risk to those road users, and that gave rise to a duty of care.

No doubt police would strenuously defend such a claim.  The argument would be, as suggested, that this case is NOT like Robinson in that it was not the police that caused the injury or damage but the thief.  In Robinson it was the police and the thief who collided with the victim but in my correspondent’s case it was just the car thief.   And even if there was a duty of care that does not mean there was negligence. That would require detailed examination of what happened, what decisions were made, whether police had complied with procedures etc.

My correspondent asked: ‘Could police be accountable?’ The answer is ‘Given Robinson’s case there could be an argument so it’s possible, but establishing liability would be difficult and no doubt vigorously defended’.

Compensation

My correspondent’s advice on compensation is wrong.  They say:

We have been advised that if the DPP lodges a criminal compensation order on our behalf that would be the best course of action but getting the money from the accused is another problem as I would need his address to file a statement of claim, but police shouldn’t release this information.

If the DPP lodges an application for compensation for loss (Victims Rights and Support Act 2013 (NSW) ss 96-98) then one doesn’t need to file a statement of claim.  A statement of claim is asking the court to determine the legal issues and make the order for compensation sought. If the sentencing court makes that order then the result has been obtained. If the compensation is not paid, the order can be entered as a judgement of the court (s 101) and enforced accordingly.  The issue is therefore not about getting the person’s address but enforcing the debt.  A judgment is worthless if the person does not have the means to pay, and most offenders don’t have the means to pay.

A lesson in insurance

If you can’t afford to wear the loss, you can’t afford to be uninsured. Even if you are sure that you will only have an accident in circumstances that are not your fault, you will still wear the loss if the other driver cannot afford to pay the damages.

And if you are the driver at fault you will be liable for damages caused.  The advice here that you are not worth suing if you don’t have the means to pay is not the end of the matter.  If the other car is insured, and the insurance company pays out, they may seek to recover from you and if they can’t they may sell the debt to a debt collector.  And I’ve seen people’s lives ruined by the stress of being pursued by debt collectors even when there is no possibility to pay.

And if someone claims you were at fault and you think you were not, you can fight it in court, or you can claim on your insurance and let the insurance companies sort it out.

Conclusion

This has been a long post and a bit different to one’s usually on this blog.  It appears here because the police were involved in emergency driving so it is relevant to this blog.  It was also an opportunity to explore the reasoning in a recent case that may also have implications for fire and other emergency services.

The case, Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 confirmed the principle that agencies like police, and by extension, fire brigades, do not owe a duty to protect people from harm that is not of their making.  For fire brigades that is consistent with earlier findings when people have sued the brigades for not saving their homes and property and have lost.  Whether it is said there is no duty because of some overriding duty to the public or the application of general principles, the outcome is the same.

For my correspondent the decision opens the door to argue the police are liable in this accident but no doubt that claim would be strongly defended.  It is not for me to give advice on the merits of the case as I don’t know the details.  The best that can be said is that it may be possible to argue that the police are liable, but more information would be needed. My correspondent should see a solicitor.

And if you can’t afford to wear the loss, you can’t afford to be uninsured.