In Chief Constable of Essex Police v Transport Arendonk Bvba [2020] EWHC 212 (QB), the High Court (Laing J) refused to strike out a claim in negligence, against the police, where the driver of a lorry carrying cargo had been arrested for drink-driving, and the cargo had been stolen during the driver’s detention at the police station. It demonstrates the continued difficulty to identify what is a police "act" or "omission" - and what amounts to the police causing a state of danger, giving rise to liability.

Transport Arendonk BvBa was responsible for cargo being shipped from Belgium to Sheffield in a lorry driven by its employee (“L”). The lorry was involved in a collision, but L continued for a quarter of a mile before stopping in an unlit layby. The police were called and on arrival, L was given a breath test which was positive. L was arrested and taken to the police station. During the night, while L was at the station, the lorry was broken into and cargo stolen. 

It was alleged that L had told the police he was not allowed to leave the lorry, that the police had not let him call his employers or called anyone on his behalf, that they had confiscated the keys to the lorry, and that they knew that there was a risk of thefts from unattended lorries in the area.  The police submitted that they owed no duty of care to prevent the commission of crimes by third parties; that the sole cause of the lorry being unattended was L leaving the scene of the accident and being over the alcohol limit; and that it was not arguable that they had assumed responsibility for the lorry or its cargo.

The judge did not accept that it was clear-cut that the police either had not created a danger of theft from the vehicle by removing L without informing L’s employers or had not assumed responsibility for the lorry by taking the keys. He therefore decided that it was arguable that a duty of care had been owed and that there should be a trial of the full facts.

The High Court dismissed the appeal against the refusal to strike out. The Court reviewed the relevant authorities: Home Office v Dorset Yacht Co Ltd [1970] UKHL 2; [1970] AC 1004, Hill v Chief Constable of West Yorkshire [1989] AC 53; [1987] UKHL 12, Michael v Chief Constable of South Wales [2015] UKSC 2; [2015] AC 1732, Robinson v Chief Constable of West Yorkshire [2018] UKSC 4; [2018] AC 736 and Poole Borough Council v GN [2019] UKSC 25; [2019] 2 WLR 1478. It concluded that:

- None of these cases was the same as, or similar to, the present case [84];

- It could not be said with certainty whether this was a case involving an act by the police which had arguably caused harm, or an arguable failure to prevent harm caused by others [87];

- Even if it was the latter (an “omission”) it was not unarguable that the case did not fall within any of the exceptions to the general rule that the common law will not impose liability in respect of pure omissions [93].

Commentary

It is perhaps surprising that the Court was not more ready to conclude that this was, unarguably, an “omission” case.  In Robinson, police officers injured an elderly woman when, during the course of arresting a suspected drug dealer, they knocked her to the ground: thus, the claim for damages was based on a “positive act, not an omission” (per Lord Reed at [73]). In the present case, it was not the police who had stolen the cargo from the lorry. Their action had been confined to removing the driver (by arresting him) thereby arguably exposing the cargo to the risk of being stolen by criminals.

The law on whether and in what circumstances a court will impose liability in respect of an omission, where the tortfeasor has not himself caused the harm but has failed to prevent harm caused by someone else, is not altogether straightforward.

In Dorset Yacht (1970) a case well known to law students, the House of Lords concluded that a duty of care was owed by borstal officers who had taken trainees to an island and failed to supervise them during the course of the night.  The trainees, who had criminal records, escaped from the island and damaged a yacht moored offshore.  The Court concluded that there was a duty to take reasonable care to prevent the trainees, who were under the control of the officers, from escaping and damaging the plaintiff’s property where that was a manifest risk of the trainees’ escaping.

However, in Hill (1989) the claim against the police for failing to apprehend the Yorkshire Ripper and thereby prevent harm to further victims, the House of Lords held that no duty of care was owed to the public at large, being an unlimited class of potential  victims, to protect them from the acts of an unidentified criminal.

In Robinson (2018) the Supreme Court (Lord Reed) explained that:

1. Hill did not confer a general immunity on the police in respect of anything done in the prevention or investigation of crime (at [55]); 

2. Rather, where a court is considering whether a duty is owed to protect someone against injury caused by a third party, there will generally need to be “special circumstances”, such as where the police have created the source of danger or assumed a responsibility to protect the claimant (at [70]) – there being no such special circumstances in Hill (c.f. Dorset Yacht).

Fortunately, the exceptions to the rule that the common law will not generally impose liability in respect of pure omissions, have been re-articulated relatively recently.

In Michael (2015) the Supreme Court held that the police did not owe a duty of care to a woman following an emergency call she made reporting threats of violence by a third party, who subsequently killed her before the police arrived.  At [98] to [100], Lord Toulson outlined two exceptions, where the common law may impose liability for a careless omission (neither of which applied on the facts of Michael):

- Where the defendant (D) was in a position of control over the third party (T) and should have foreseen the likelihood of T causing damage to somebody in close proximity if D failed to take reasonable care in the exercise of that control. Lord Toulson cited the New Zealand case of Couch v Attorney General [2008] 3 NZLR 725, where Tipping J explained that this type of case requires “careful analysis of two special relationships, the relationship between D and T and the relationship between D and C” (the claimant);

- Where the defendant has assumed a responsibility towards the claimant.

In Poole Borough Council (2019) the Supreme Court confirmed that a local authority owed no duty to protect two children from harassment at the hands of a family living nearby, who had persistently engaged in anti-social behaviour. As in Robinson at [34], so in at [76], Lord Reed cited the “helpful summary” by Tofaris & Steel in “Negligence Liability for Omissions and the Police” (2016) 75 CLJ 128 regarding the exceptions to the general rule on liability for omissions (none of which were held to apply in N):

“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.”

In the present case, the Court concluded that it was at least arguable that:

- The police had assumed a responsibility to the hauliers to keep the lorry safe –although Laing J appears to have regarded this as something of a stretch [92];

- The case fell within one of the other exceptions outlined in Tofaris & Steel [93].

There was no further discussion of the exceptions, and it seems the Court was reluctant to permit what it regarded as fact-sensitive questions to be struck out. 

However, it is not easy to see how any of the aforementioned exceptions would apply.  The police had not created the danger of cargo being stolen in the area, nor had they ever controlled the source of that danger (the criminals). The police had, arguably, contributed to the risk of theft by removing the driver from the lorry. However, that was pursuant to an arrest, the lawfulness of which was not challenged. The crux of the claim was that, thereafter, the police had failed to protect the cargo (by permitting the haulier to be contacted, or contacting the haulier themselves, thereby potentially enabling someone else to protect the cargo). Such an omission stretches well beyond the general duty on the police to prevent and investigate crime. If no duty could be owed to a victim of domestic violence following a 999 call (per Michael) it is surprising that a court could conclude that a duty could be owed to a haulier whose cargo was damaged following his own employee’s arrest for drink-driving.     

Whilst the case confirms the difficulty of succeeding on a strike-out, it also demonstrates the extent to which liability for omissions on the part of police officers is still an open question, where damage has been caused by a third party and it is suggested the police could or should have prevented it.