Robinson v Chief Constable of West Yorkshire Police

Hilary Term

[2018] UKSC 4

On appeal from: [2014] EWCA Civ 15

Robinson (Appellant) v Chief Constable of West Yorkshire Police (Respondent)

before

Lady Hale

JUDGMENT GIVEN ON

8 February 2018

Heard on 12 July 2017

Appellant	Respondent
Nicholas Bowen QC	Jeremy Johnson QC
David Lemer	Ian Skelt

Duncan Fairgrieve

(Instructed by Grieves	(Instructed by West
Solicitors)	Yorkshire Police Legal

Services)

LORD REED: (with whom Lady Hale and Lord Hodge agree)

1. On a Tuesday afternoon in July 2008 Mrs Elizabeth Robinson, described by the Recorder as a relatively frail lady then aged 76, was walking along Kirkgate, a shopping street in the centre of Huddersfield, 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.

2. The principal question which has to be decided in this appeal is whether the officers owed a duty of care to Mrs Robinson. The other important question is whether, if they did, they were in breach of that duty. Mr Recorder Pimm held that the officers had been negligent, but that police officers engaged in the apprehension of criminals were immune from suit. The Court of Appeal held that no duty of care was owed, and that, even if the officers had owed Mrs Robinson such a duty, they had not acted in breach of it: [2014] EWCA Civ 15.

3. As will appear, the simple facts of this case have given rise to proceedings raising issues of general importance. Most of those issues can be decided by applying long-established principles of the law of negligence. The fact that the issues have reached this court reflects the extent to which those principles have been eroded in recent times by uncertainty and confusion.

The facts

4. The events leading to Mrs Robinson’s accident began when DS Neil Willan spotted Mr Ashley Williams apparently dealing drugs in a park in the centre of Huddersfield. He did not attempt to arrest Williams immediately, as Williams was young and physically fit, and Willan thought that he was unlikely to be able to arrest him without his running away. He called for backup, and DC Ian Green and DS Damian Roebuck then made their way to join him.

5. Williams went to a bookmakers on Kirkgate, and Willan followed him inside. He decided not to attempt an arrest inside the shop, as there were people there whom he recognised, and he was concerned that attempting an arrest would endanger both his own safety and that of the customers and staff. Williams then left the shop and stood outside it. Green and Roebuck then arrived, and another officer, PC Dhurmea, arrived soon afterwards. Like Willan, they were in plain clothes.

6. Willan and Roebuck formed a plan to arrest Williams while he was standing outside the bookmakers. The plan involved Willan and Dhurmea approaching Williams from one direction, taking hold of him and effecting the arrest, while Roebuck and Green were positioned in the opposite direction, to prevent his escape and assist once Willan and Dhurmea had taken hold of him. Willan and Dhurmea positioned themselves up the street from the bookmakers, while Green and Roebuck took up a position some distance down the street. Kirkgate was moderately busy at the time with pedestrians and traffic. Mrs Robinson was one of a number of pedestrians walking along the pavement. She passed Willan and Dhurmea, and then Williams, very shortly after two other pedestrians.

7. Almost immediately after she passed Williams, and when she was within a yard of him, Willan and Dhurmea approached him. Mrs Robinson was then in their line of sight. The officers took hold of Williams and attempted to arrest him. Williams resisted arrest. As the men tussled, they moved towards Mrs Robinson and collided with her. The initial contact was between her and Williams, who backed into her. She fell over, and the men fell on top of her. Roebuck and Green arrived three seconds later and assisted in arresting Williams.

The proceedings before the Recorder

8. Mrs Robinson issued proceedings for damages for personal injury, on the basis first of the negligence of the officers, and secondly assault and trespass to the person occasioned by DS Willan. The latter aspect of the claim is no longer in issue. Following a hearing on liability, the Recorder dismissed the claim.

9. In relation to the facts, the Recorder relied on CCTV footage of the incident, together with the evidence of DS Willan, DS Roebuck and DC Green concerning

the planning of the arrest. He accepted Willan’s evidence that the officers had

identified the risk that Williams would try to run away, and regarded it as significant. Willan also said that he was aware of the potential for harm to members of the public if Williams tried to escape. His evidence was that in any situation it was necessary to consider the risk to those in the vicinity. He said that if it had appeared to him that

someone was in harm’s way, he would have walked past Williams without effecting

the arrest. The Recorder noted that that was in accordance with the risk assessment guidance provided to police officers in relation to arrests in drugs cases, to which he had been referred in the evidence. Willan said that he had not been aware of Mrs

Robinson’s presence when he attempted to arrest Williams.

10. Willan also gave evidence that there was some urgency in effecting the arrest. He had seen Williams taking the drugs from a bag secured around his neck. It was important to arrest him while he still had drugs in his possession. Without the drugs, there was unlikely to be sufficient evidence for a successful prosecution.

11. DS Roebuck said that it had taken him and DC Green about three seconds to get from the place where they had taken up position prior to the attempted arrest to the scene where the other three men were on top of Mrs Robinson. He said that suspects like Williams could have recognised them as police officers if they had been any closer. The Recorder did not accept that evidence, which was unsupported by any other evidence. As far as appeared from the evidence, Roebuck and Green would, he found, just have been two men walking along the street.

12. In the light of the evidence, the Recorder found that the decision to arrest Williams at the time and place selected by the officers involved a foreseeable risk that Mrs Robinson would be injured. She was in very close proximity to Williams at that moment, she was an elderly lady, and there was a significant and foreseeable risk that he would try to escape.

13. In the view of the Recorder, the officers had acted negligently. First, Willan accepted that he ought to have been taking care for the safety of members of the public in the vicinity. Although Mrs Robinson had just walked past Williams and was within a yard of him, Willan did not notice her. That was prima facie in breach of his duty of care. Secondly, in view of the known risk that Williams would try to escape, the officers could have waited and selected a safer opportunity to effect the arrest. Thirdly, there was a clear need for all four officers to be present if the arrest was to be carried out safely with pedestrians passing. Roebuck and Green had however been too far away to assist their colleagues until several seconds had passed. The risk could have been minimised if they had been closer at the time when the arrest was attempted.

14. The Recorder held, however, that the decision in Hill v Chief Constable of West Yorkshire [1989] AC 53 had conferred on the police an immunity against claims in negligence. In the light of the decision of the Court of Appeal in Desmond v Chief Constable of Nottinghamshire Police [2011] EWCA Civ 3; [2011] PTSR 1369, that immunity was not confined to cases of omission. It therefore applied in the present case.

The proceedings in the Court of Appeal

15.       In the Court of Appeal, Hallett LJ considered that “the Caparo test [Caparo

Industries plc v Dickman [1990] 2 AC 605, 617-618] applies to all claims in the

modern law of negligence” (para 40). In consequence, “[t]he court will only impose

a duty where it considers it right to do so on the facts” (ibid). The general principle

was that “most claims against the police in negligence for their acts and omissions

in the course of investigating and suppressing crime and apprehending offenders

will fail the third stage of the Caparo test” (para 46). That is to say, “[i]t will not be fair, just and reasonable to impose a duty” (ibid). That is because “the courts have

concluded that the interests of the public will not be best served by imposing a duty

[on] to individuals” (ibid). The answer to counsel’s rhetorical question, what would

the public think if the police, in the process of arresting criminals, could injure

innocent members of the public with impunity, was that “provided the police act

within reason, the public would prefer to see them doing their job and taking drug

dealers off the street” (para 47). One might observe that if the police are not under a

duty of care, then it is irrelevant to the issue whether they act within reason or not. On the other hand, if they act with reasonable care, then they will not be in breach of a duty of care, even if an innocent member of the public is injured.

16. Hallett LJ accepted that the authorities suggested that there might be a number of possible exceptions to the general principle: cases of outrageous negligence, cases which did not relate to core functions, and cases where police officers had assumed responsibility for a claimant. The present case did not fall into

any of those categories. It 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” (para 51).

17. Hallett LJ added that, even if counsel for Mrs Robinson had been correct in her argument that there was no immunity from liability where police officers caused direct physical harm to members of the public, it was in any event clear that Williams

was responsible for the harm. This was therefore a claim based on the officers’

failure to prevent Williams from harming Mrs Robinson: in the language used in other cases, it concerned an omission, rather than a positive act. Such a claim fell at the first hurdle: it was not fair, just or reasonable to impose liability on those facts.

18. Furthermore, Hallett LJ considered that there was no proximity between Mrs Robinson and the police officers, notwithstanding that she had been injured when they fell on top of her. It was not enough to find that there was a reasonably foreseeable risk of her being physically injured in the course of carrying out the arrest.

19. Hallett LJ also added that, had it been necessary, she would have felt obliged to overturn the Recorder’s finding of negligence. In that regard, she criticised him

for acting as if he were an expert in the arrest and detention of suspects. In her own view, DS Willan could not afford to wait. He was bound to attempt the arrest or risk losing the suspect and the evidence. The delay of three seconds in the other two officers reaching the scene was hardly worthy of criticism. Arnold J delivered a concurring judgment, and Sullivan LJ agreed with Hallett LJ.

The issues

20.       The issues arising from the judgments below and the parties’ submissions can

be summarised as follows:

(1)	Does the existence of a duty of care always depend on the application

of “the Caparo test” to the facts of the particular case?

(2) Is there a general rule that the police are not under any duty of care when discharging their function of investigating and preventing crime? Or are the police generally under a duty of care to avoid causing reasonably foreseeable personal injuries, when such a duty would arise in accordance with ordinary principles of the law of negligence? If the latter is the position, does the law distinguish between acts and omissions: in particular, between causing injury, and protecting individuals from injury caused by the conduct of others?

(3)	If the latter is the position, is this an omissions case, or a case of a

positive act?

(4)	Did the police officers owe a duty of care to Mrs Robinson?
(5)	If so, was the Court of Appeal entitled to overturn the Recorder’s

finding that the officers failed in that duty?

(6) If there was a breach of a duty of care owed to Mrs Robinson, were her injuries caused by that breach?

(1)

Caparo

21. The proposition that there is a Caparo test which applies to all claims in the modern law of negligence, and that in consequence the court will only impose a duty of care where it considers it fair, just and reasonable to do so on the particular facts, is mistaken. As Lord Toulson pointed out in his landmark judgment in Michael v Chief Constable of South Wales Police (Refuge and others intervening) [2015] UKSC 2; [2015] AC 1732, para 106, that understanding of the case mistakes the whole point of Caparo, which was to repudiate the idea that there is a single test which can be applied in all cases in order to determine whether a duty of care exists, and instead to adopt an approach based, in the manner characteristic of the common law, on precedent, and on the development of the law incrementally and by analogy with established authorities.

22. Caparo was decided in the aftermath of Lord Wilberforce’s attempt in Anns v Merton London Borough Council [1978] AC 728, 751-752 to lay down an approach which could be applied in all situations in order to determine the existence of a duty of care. That approach had two stages: first, it was necessary to decide whether there was a prima facie duty of care, based on the foreseeability of harm, and secondly, in order to place limits on the breadth of the first stage, it was necessary to consider whether there were reasons of public policy for excluding or restricting any such prima facie duty. That approach had major implications for public authorities, as they have a multitude of functions designed to protect members of the public from harm of one kind or another, with the consequence that the first stage enquiry was readily satisfied, and the only limit to liability became public policy.

23. Anns led to a period during which the courts struggled to contain liability, particularly for economic loss unassociated with physical damage or personal injury, and for the acts and omissions of public authorities. Commenting extra-judicially

during that period, Lord Oliver of Aylmerton said that “what has been seen as a

principle of prima facie liability has been prayed in aid in subsequent cases to justify claims for damages which have become progressively more divorced from common sense and as placing on the defendant a burden, sometimes virtually insurmountable,

of showing some good reason in ‘policy’ why he should not be held liable”: “Judicial Legislation: Retreat from Anns”, Third Sultan Azlan Shah Law Lecture (1988). It

was in the context of the retreat from Anns that emphasis was placed in a number of

cases on the concept of “proximity”, and on the idea that it must be fair to impose a

duty of care on the defendant.

24. In Caparo, Lord Bridge of Harwich noted that, since Anns, a series of decisions of the Privy Council and the House of Lords, notably in judgments and speeches delivered by Lord Keith of Kinkel (including his speech in Hill v Chief

Constable of West Yorkshire), had emphasised “the inability of any single general

principle to provide a practical test which can be applied to every situation to

determine whether a duty of care is owed and, if so, what is its scope” (p 617). It is

ironic that the immediately following passage in Lord Bridge’s speech has been

treated as laying down such a test, despite, as Lord Toulson remarked in Michael, the pains which he took to make clear that it was not intended to be any such thing:

“What emerges [from the post-Anns decisions] is that, 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 one party for the benefit of the other. But it is implicit in the passages referred to that the concepts of proximity and fairness

embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them

utility as practical tests, but amount in effect to little more than

convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise

to a duty of care of a given scope.” (pp 617-618; emphasis

added)

25. Lord Bridge immediately went on to adopt an incremental approach, based

on the use of established authorities to provide guidance as to how novel questions
should be decided:

“I think the law has now moved in the direction of attaching

greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes. We must now, I think, recognise the wisdom of the words of Brennan J in the High Court of Australia in Sutherland Shire Council v Heyman (1985) 60 ALR 1, 43-44, where he said:

‘It is preferable, in my view, that the law should develop

novel categories of negligence incrementally and by

analogy with established categories ...’” (p 618)

It was that approach, and not a supposed tripartite test, which Lord Bridge then proceeded to apply to the facts before him.

26. Applying the approach adopted in Caparo, there are many situations in which it has been clearly established that a duty of care is or is not owed: for example, by motorists to other road users, by manufacturers to consumers, by employers to their employees, and by doctors to their patients. As Lord Browne-Wilkinson explained

in Barrett v Enfield London Borough Council [2001] 2 AC 550, 560, “Once the

decision is taken that, say, company auditors though liable to shareholders for negligent auditing are not liable to those proposing to invest in the company ... that

decision will apply to all future cases of the same kind”. Where the existence or non-

existence of a duty of care has been established, a consideration of justice and reasonableness forms part of the basis on which the law has arrived at the relevant principles. It is therefore unnecessary and inappropriate to reconsider whether the existence of the duty is fair, just and reasonable (subject to the possibility that this court may be invited to depart from an established line of authority). Nor, a fortiori, can justice and reasonableness constitute a basis for discarding established principles and deciding each case according to what the court may regard as its broader merits. Such an approach would be a recipe for inconsistency and uncertainty, as Hobhouse LJ recognised in Perrett v Collins [1999] PNLR 77, 90- 91:

“It is a truism to say that any case must be decided taking into

account the circumstances of the case, but where those circumstances comply with established categories of liability, a defendant should not be allowed to seek to escape from liability by appealing to some vaguer concept of justice or fairness; the law cannot be re-made for every case. Indeed, the previous authorities have by necessary implication held that it is fair, just and reasonable that the plaintiff should recover in

the situations falling within the principles they have applied.”

27. It is normally only in a novel type of case, where established principles do not provide an answer, that the courts need to go beyond those principles in order to decide whether a duty of care should be recognised. Following Caparo, the characteristic approach of the common law in such situations is to develop incrementally and by analogy with established authority. The drawing of an analogy depends on identifying the legally significant features of the situations with which the earlier authorities were concerned. The courts also have to exercise judgement when deciding whether a duty of care should be recognised in a novel type of case. It is the exercise of judgement in those circumstances that involves consideration of

what is “fair, just and reasonable”. As Lord Millett observed in McFarlane v Tayside

Health Board [2000] 2 AC 59, 108, the court is concerned to maintain the coherence of the law and the avoidance of inappropriate distinctions if injustice is to be avoided

in other cases. But it is also “engaged in a search for justice, and this demands that

the dispute be resolved in a way which is fair and reasonable and accords with

ordinary notions of what is fit and proper”.

28. In the present case, Hallett LJ cited the decision of this court in Smith v Ministry of Defence (JUSTICE intervening) [2013] UKSC 41; [2014] AC 52 as an example of a decision in which there was a focus on the three ingredients mentioned by Lord Bridge. That was however a case raising a novel legal issue, relating to the provision of protective equipment to soldiers on active duty, and the scope of combat immunity: it did not concern an established category of liability. Hallett LJ also relied on a passage in the speech of Lord Steyn in Marc Rich & Co AG v Bishop

Rock Marine Co Ltd [1996] AC 211, 235, in which he remarked that “the elements

of foreseeability and proximity as well as considerations of fairness, justice and

reasonableness are relevant to all cases”. That was a case concerned with the loss of

a ship and its cargo as a result of negligent advice, in which the reasoning was essentially directed to considerations relevant to economic loss. As Hobhouse LJ observed in Perrett v Collins at p 92:

“Marc Rich should not be regarded as an authority which has a

relevance to cases of personal injury or as adding any requirements that an injured plaintiff do more than bring his case within established principles. If a plaintiff is attempting to establish some novel principle of liability, then the situation

would be different.”

It was in any event made clear in Michael that the idea that Caparo established a tripartite test is mistaken.

29. Properly understood, Caparo thus achieves a balance between legal certainty and justice. In the ordinary run of cases, courts consider what has been decided previously and follow the precedents (unless it is necessary to consider whether the precedents should be departed from). In cases where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions. They will also weigh up the reasons for and against imposing liability, in order to decide whether the existence of a duty of care would be just and reasonable. In the present case, however, the court is not required to consider an extension of the law of negligence. All that is required is the application to particular circumstances of established principles governing liability for personal injuries.

30.       Addressing, then, the first of the issues identified in para 20 above, the

existence of a duty of care does not depend on the application of a “Caparo test” to

the facts of the particular case. In the present case, it depends on the application of

established principles of the law of negligence.

(2)	The police
(i) Public authorities in general

31. Before focusing on the position of the police in particular, it may be helpful to consider the position of public authorities in general, as this is an area of the law of negligence which went through a period of confusion following the case of Anns, as explained in paras 22-23 above. That confusion has not yet entirely dissipated, as courts continue to cite authorities from that period without always appreciating the extent to which their reasoning has been superseded by the return to orthodoxy achieved first in Stovin v Wise [1996] AC 923 and then, more fully and clearly, in Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15; [2004] 1 WLR 1057.

32. At common law, public authorities are generally subject to the same liabilities in tort as private individuals and bodies: see, for example, Entick v Carrington (1765) 2 Wils KB 275 and Mersey Docks and Harbour Board v Gibbs (1866) LR 1

HL 93. Dicey famously stated that “every official, from the Prime Minister down to

a constable or collector of taxes, is under the same responsibility for every act done

without legal justification as any other citizen”: Introduction to the Study of the Law

of the Constitution 3rd ed (1889), p 181. An important exception at common law was the Crown, but that exception was addressed by the Crown Proceedings Act 1947, section 2.

33. Accordingly, if conduct would be tortious if committed by a private person or body, it is generally equally tortious if committed by a public authority: see, for example, Dorset Yacht Co Ltd v Home Office [1970] AC 1004, as explained in Gorringe, para 39. 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: Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430. 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.

34. On the other hand, public authorities, like private individuals and bodies, are generally under no duty of care to prevent the occurrence of harm: as Lord Toulson

stated in Michael, “the common law does not generally impose liability for pure omissions” (para 97). 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.”

35. As that summary makes clear, there are certain circumstances in which public authorities, like private individuals and bodies, can come under a duty of care to prevent the occurrence of harm: see, for example, Barrett v Enfield London Borough Council and Phelps v Hillingdon London Borough Council [2001] 2 AC 619, as explained in Gorringe at paras 39-40. In the absence of such circumstances, however, public authorities generally owe no duty of care towards individuals to confer a benefit upon them by protecting them from harm, any more than would a private individual or body: see, for example, Smith v Littlewoods Organisation Ltd [1987] AC 241, concerning a private body, applied in Mitchell v Glasgow City Council [2009] UKHL 11; [2009] AC 874, concerning a public authority.

36. That is so, notwithstanding that a public authority may have statutory powers or duties enabling or requiring it to prevent the harm in question. A well-known illustration of that principle is the decision of the House of Lords in East Suffolk Rivers Catchment Board v Kent [1941] AC 74. The position is different if, on its true construction, the statutory power or duty is intended to give rise to a duty to individual members of the public which is enforceable by means of a private right

of action. If, however, the statute does not create a private right of action, then “it

would be, to say the least, unusual if the mere existence of the statutory duty [or, a

fortiori, a statutory power] could generate a common law duty of care”: Gorringe,

para 23.

37. A further point, closely related to the last, is that public authorities, like private individuals and bodies, generally owe no duty of care towards individuals to prevent them from being harmed by the conduct of a third party: see, for example, Smith v Littlewoods Organisation Ltd and Mitchell v Glasgow City Council. In Michael, Lord Toulson explained the point in this way:

“It is one thing to require a person who embarks on action

which may harm others to exercise care. It is another matter to hold a person liable in damages for failing to prevent harm

caused by someone else.” (para 97)

There are however circumstances where such a duty may be owed, as Tofaris and Steele indicated in the passage quoted above. They include circumstances where the public authority has created a danger of harm which would not otherwise have

existed, or has assumed a responsibility for an individual’s safety on which the

individual has relied. The first type of situation is illustrated by Dorset Yacht, and in relation to the police by the case of Attorney General of the British Virgin Islands v Hartwell [2004] 1 WLR 1273, discussed below. The second type of situation is illustrated, in relation to the police, by the case of An Informer v A Chief Constable [2013] QB 579, as explained in Michael at para 69.

38. In Anns, however, it was decided that a local authority owed a duty of care at common law, when exercising its power to inspect building works, to protect the ultimate occupier of the building from loss resulting from defects in its construction. The House of Lords thus held a public authority liable at common law for a careless

failure to confer a benefit, by preventing harm caused by another person’s conduct,

in the absence of any special circumstances such as an assumption of responsibility towards the claimant. It added to the confusion by importing public law concepts, and the American distinction between policy and operational decisions, into questions concerning duties arising under the law of obligations. Although the decision was overruled in Murphy v Brentwood District Council [1991] 1 AC 398 on a limited basis (relating to the categorisation of the type of harm involved), its reasoning in relation to these matters was not finally disapproved until Stovin v Wise.

39. The position was clarified in Gorringe v Calderdale Metropolitan Borough Council, which made it clear that the principle which had been applied in Stovin v Wise in relation to a statutory duty was also applicable to statutory powers. Lord Hoffmann (with whom Lord Scott of Foscote, Lord Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood agreed) said that he found it difficult to imagine a case in which a common law duty could be founded simply on the failure, however irrational, to provide some benefit which a public authority had power (or a public law duty) to provide (para 32). He was careful to distinguish that situation from cases where a public authority did acts or entered into relationships or undertook responsibilities giving rise to a duty of care on an orthodox common law foundation (para 38).

40. However, until the reasoning in Anns was repudiated, it was not possible to justify a rejection of liability, where a prima facie duty of care arose at the first stage of the analysis from the foreseeability of harm, on the basis that public bodies are not generally liable for failing to exercise their statutory powers or duties so as to confer the benefit of protection from harm. Instead, it was necessary to have recourse to public policy in order to justify the rejection of liability at the second stage. That was accordingly the approach adopted by the House of Lords and the Court of Appeal in a series of judgments, including Hill. The need to have recourse to public policy for that purpose has been superseded by the return to orthodoxy in Gorringe.

Since that case, a public authority’s non-liability for the consequences of an

omission can generally be justified on the basis that the omissions principle is a general principle of the law of negligence, and the law of negligence generally applies to public authorities in the same way that it applies to private individuals and bodies.

41. Equally, concerns about public policy cannot in themselves override a liability which would arise at common law for a positive act carried out in the course of performing a statutory function: the true question is whether, properly construed, the statute excludes the liability which would otherwise arise: see Gorringe at para 38 per Lord Hoffmann.

42. That is not to deny that what might be described as policy considerations sometimes have a role to play in the law of negligence. As explained earlier, where established principles do not provide a clear answer to the question whether a duty of care should be recognised in a novel situation, the court will have to consider whether its recognition would be just and reasonable.

(ii)       The police in particular

43. Turning to consider specifically the position of the police, Lord Toulson explained in the case of Michael at paras 29-35 that the police owe a duty to the public at large for the prevention of violence and disorder. That public law duty has a number of legal consequences. For example, the police cannot lawfully charge members of the public for performing their duty (Glasbrook Bros Ltd v Glamorgan County Council [1925] AC 270), and a police officer who wilfully fails to perform his duty may be guilty of a criminal offence (R v Dytham [1979] QB 722). Some members of the public may have standing to enforce the duty, for example in proceedings for judicial review (R v Commissioner of Police of the Metropolis, Ex p Blackburn [1968] 2 QB 118), but in doing so they are not enforcing a duty owed to them as individuals.

44. In relation to the question whether, and in what circumstances, a private law duty of care might be owed by the police to particular individuals, Lord Toulson discussed in Michael the case of Hill, and in particular the speech of Lord Keith, with whom Lord Brandon of Oakbrook, Lord Oliver and Lord Goff of Chieveley agreed. Since it is apparent from the judgments below in the present proceedings,

and from the submissions to this court, that Lord Keith’s reasoning continues to be

misunderstood, it is necessary to consider it once more.

45.       For the purposes of the present case, the most important aspect of Lord

Keith’s speech in Hill is that, in the words of Lord Toulson (Michael, para 37), “he

recognised that the general law of tort applies as much to the police as to anyone

else”. What Lord Keith said was this:

“There is no question that a police officer, like anyone else,

may be liable in tort to a person who is injured as a direct result of his acts or omissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious

prosecution, and also for negligence.” (p 59; emphasis

supplied)

The words “like anyone else” are important. They indicate that the police are subject

to liability for causing personal injury in accordance with the general law of tort. That is as one would expect, given the general position of public authorities as explained in paras 32-33 above.

46.       Lord Keith’s dictum is vouched by numerous authorities. Those which he

cited were Knightley v Johns [1982] 1 WLR 349, where a police officer who attended the scene of a road accident carelessly created an unnecessary danger to the claimant, and Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242, where police officers attending a siege at a gunsmith's shop, where a psychopathic intruder had armed himself and was firing from the building, carelessly caused damage to the premises in the course of an attempt to end the siege, by firing a CS gas canister into the building in the absence of fire-fighting equipment. That decision, cited with approval in Hill and in later authorities, is inconsistent with any supposed rule that the police owe no duty of care in respect of action taken in the course of suppressing crime. Lord Keith also referred to the decision in Dorset Yacht, where prison officers who brought young offenders on to an island and then left them unsupervised, when it was reasonably foreseeable that they would attempt to escape, and in doing so cause damage to property, were held to be in breach of a duty of care.

47. Other examples concerning the police include Attorney General of the British Virgin Islands v Hartwell, where police authorities were held to have been negligent in entrusting a firearm to an officer who was still on probation and had shown signs of mental instability, and cases such as Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455, in which police forces, although not technically employers, have been treated as owing the same common law duty as employers to take reasonable care for the safety of their officers. There are also numerous cases concerned with road accidents involving police cars, such as Marshall v Osmond [1983] QB 1034, where Sir John Donaldson MR observed that the duty owed by a police driver to a suspected criminal whom he was pursuing was the same duty as that owed to anyone else, namely to exercise such care and skill as is reasonable in the circumstances. One might also mention Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, where the House of Lords accepted, applying principles developed in cases concerning private individuals and bodies, that a duty of care was owed by the police, when they were responsible for crowd control at a football match, to persons who suffered psychiatric injuries as a result of deaths and injuries sustained by members of the crowd, subject to those persons being sufficiently proximate in time and space to the incident, and to their having a sufficiently close relationship to the dead and injured.

48. These cases are not anomalous exceptions to the general absence of a duty of care, and cannot all be explained as falling within particular categories of the kind listed by Hallett LJ in the present case: cases of outrageous negligence, cases which did not relate to core functions, and cases where police officers had assumed responsibility for a claimant. The cases of Rigby v Chief Constable of Northamptonshire and Marshall v Osmond, for example, are plainly inconsistent with any supposed rule that the police owe no duty of care when engaged in their

core operational activities, or that “outrageous negligence” or an assumption of

responsibility must be established. On the contrary, these cases are examples of the application to the police of the ordinary common law duty of care to avoid causing reasonably foreseeable injury to persons and reasonably foreseeable damage to property.

49. There are also examples concerned with other torts, such as Ashley v Chief Constable of Sussex Police (Sherwood intervening) [2008] AC 962, where relatives of a suspected drug dealer who had been shot dead by a police officer during a raid were held to have a cause of action for damages for battery (liability for negligence having been conceded), Minio-Paluello v Commissioner of Police of the Metropolis [2011] EWHC 3411 (QB), where a protestor who suffered serious injuries when being pulled up from the ground by a police officer with excessive force was found entitled to damages for assault, and McDonnell v Commissioner of Police of the Metropolis [2015] EWCA Civ 573, where a claim for damages by a suspected drug dealer for assault arising from the use of excessive force during his arrest failed only on its facts.

50. On the other hand, as Lord Toulson noted in Michael (para 37), Lord Keith held that the general duty of the police to enforce the law did not carry with it a private law duty towards individual members of the public. In particular, police

officers investigating a series of murders did not owe a duty to the murderer’s

potential future victims to take reasonable care to apprehend him. That was again in accordance with the general law of negligence. As explained earlier, the common law does not normally impose liability for omissions, or more particularly for a failure to prevent harm caused by the conduct of third parties. Public authorities are not, therefore, generally under a duty of care to provide a benefit to individuals through the performance of their public duties, in the absence of special circumstances such as an assumption of responsibility. This was recognised by Lord Toulson in Michael. As he explained:

“The refusal of the courts to impose a private law duty on the

police to exercise reasonable care to safeguard victims or potential victims of crime, except in cases where there has been a representation and reliance, does not involve giving special treatment to the police ... The question is therefore not whether the police should have special immunity, but whether an exception should be made to the ordinary application of

common law principles.” (paras 115-116)

51. As previously explained, however, the reasoning by which Lord Keith arrived at the same conclusion as Lord Toulson reflects the period during which the case was decided, when Anns continued to be influential. Following the two-stage approach to liability set out in Anns, Lord Keith considered first the argument that a duty of care arose in consequence of the foreseeability of harm to potential victims if the murderer was not apprehended. In that regard, Lord Keith emphasised that the foreseeability of harm was not in itself a sufficient basis for the imposition of a duty of care, and introduced the concept of proximity as a further ingredient. He concluded that there was no ingredient or characteristic giving rise to the necessary

proximity between the police and the claimant’s daughter (who was one of the

murderer’s victims), and that the circumstances of the case were not capable of

establishing a duty of care owed towards her by the police.

52. As Lord Toulson remarked in Michael (para 42), if Lord Keith had stopped at that point, it is unlikely that the decision would have caused controversy. However, having observed that what he had said was sufficient for the disposal of the appeal, Lord Keith went on to discuss the application of the second stage of the approach laid down in Anns: namely, whether there were reasons of public policy

why an action should not lie “in circumstances such as those of the present case” (p

63). He concluded that there were such reasons, and expressed the view that the

Court of Appeal had been “right to take the view that the police were immune from

an action of this kind” (pp 63-64).

53.       It is important to note that this part of Lord Keith’s speech was unrelated to

a determination of whether the police were liable for negligence resulting in personal
injury, where “anyone else” would be subject to liability under ordinary principles

of the law of tort. He had already confirmed the existence of liability in those circumstances, as explained at paras 45-46 above. His comments about public policy were concerned with a different question, namely whether the police generally owe a duty of care to individual members of the public, in the performance of their investigative function, to protect them from harm caused by criminals: a question to which, on the principles established prior to Anns and subsequently reinstated in Stovin v Wise, Gorringe and Michael, as explained in paras 34-37 and 39 above, the answer was plainly no.

54. In relation to that issue, the decision in Hill has now to be understood in the light of the later authorities. In Michael, in particular, Lord Toulson (with whom Lord Neuberger, Lord Mance, Lord Hodge and I agreed) reached the same conclusion as in Hill, but did so primarily by applying the reasoning in Stovin v Wise and Gorringe. Policy arguments were considered when addressing the argument that the court should create a new duty of care as an exception to the ordinary application of common law principles (see, in particular, paras 116-118). Lord Toulson

concluded that, in the absence of special circumstances, there is no liability in “cases

of pure omission by the police to perform their duty for the prevention of violence”

(para 130).

55. The case of Hill is not, therefore, authority for the proposition that the police enjoy a general immunity from suit in respect of anything done by them in the course of investigating or preventing crime. On the contrary, the liability of the police for negligence or other tortious conduct resulting in personal injury, where liability would arise under ordinary principles of the law of tort, was expressly confirmed.

Lord Keith spoke of an “immunity”, meaning the absence of a duty of care, only in

relation to the protection of the public from harm through the performance by the
police of their function of investigating crime.

56. Arguing against that conclusion, counsel for the respondents relied particularly on five authorities as supporting the existence of a general immunity. The first was the decision of the House of Lords in Calveley v Chief Constable of the Merseyside Police [1989] AC 1228, in which police officers who had been suspended pending the completion of disciplinary proceedings sought damages in respect of an alleged failure to conduct the proceedings expeditiously. They claimed to have suffered damage to their reputation, depression, and a loss of earnings. They alleged that they were owed a duty by the investigating officers to exercise proper care and expedition in the conduct of the investigation. It was argued that a police officer investigating a suspected crime owes a duty of care to the suspect and that the same principle applied to the investigation of a disciplinary offence. The House of Lords rejected the argument. Lord Bridge pointed out that the claims in negligence foundered on the rocks of elementary principle (p 1238). The losses claimed, so far as non-financial, were not reasonably foreseeable, and the financial claims ran up against the formidable obstacles in the way of liability in negligence for purely economic loss. Lord Bridge added that all other considerations apart, it would be contrary to public policy to prejudice the fearless and efficient discharge by police officers of their vitally important public duty of investigating crime by requiring them to act under the shadow of a potential action for damages for negligence by the suspect.

57.       Reliance was placed on the latter dictum, but it is of no assistance to the

respondent in the present case. Lord Bridge’s remark has to be understood in its

context. The case sought to establish a novel type of liability relating to the manner

in which an investigation was conducted. Lord Bridge’s reference to policy

considerations was directed to that claim: he was not addressing the question whether the police may owe a duty of care to avoid causing reasonably foreseeable physical injury in the course of their operations.

58. The second authority relied on was the judgment of Steyn LJ in Elguzouli- Daf v Commissioner of Police of the Metropolis [1995] QB 335. The issue in the appeal was whether the Crown Prosecution Service owed a duty of care to a person it was prosecuting to act with reasonable diligence in obtaining and acting on scientific evidence which showed him to be innocent. The Court of Appeal held that no such duty was owed. Steyn LJ observed that the question raised was a novel one, which in the light of Caparo had to be considered by analogy with established categories of liability. In that regard, the case of Hill was considered instructive. Steyn LJ noted that the issue in that case was whether a claim against the police for a negligent failure to apprehend a violent criminal was sustainable. He summarised

the effect of the second part of Lord Keith’s speech as being that “the House of

Lords further held, as a second and separate ground of decision, that as a matter of public policy the police were immune from actions of negligence in respect of their

activities in the investigation and suppression of crime” (p 347). Steyn LJ added that

it did not follow that the police might not be liable where there was some form of
assumption of responsibility.

59. The decision in Elguzouli-Daf has been cited with approval on many occasions, and its correctness was recently confirmed by this court in SXH v Crown

Prosecution Service (United Nations High Commissioner for Refugees intervening)

[2017] UKSC 30; [2017] 1 WLR 1401. But Steyn LJ’s summary of the effect of the

second part of Lord Keith’s speech in Hill might convey a misleading impression if

taken out of context. Steyn LJ can hardly have meant that the police enjoyed a blanket immunity in respect of anything done in the course of their activities in the

investigation and suppression of crime, given his reliance on Lord Keith’s speech in

Hill. As already explained, Lord Keith confirmed the liability of the police for personal injuries in accordance with the ordinary law of tort, and cited the decision in Rigby v Chief Constable of Northamptonshire with approval.

60. Thirdly, reliance was placed on the speech of Lord Steyn in Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24; [2005] 1 WLR 1495. In that case, the claimant sought damages in respect of a psychiatric illness which he claimed to have suffered in consequence of his insensitive treatment by officers investigating an incident in which he had been assaulted and a friend of his had been murdered. The issue before the House of Lords was whether it was arguable that the police owed him a duty of care (a) to take reasonable steps to assess whether he was a victim of crime and, if so, to accord him reasonably appropriate protection and support, (b) to take reasonable steps to afford him the protection, assistance and support commonly afforded to a key eye-witness to a serious crime of violence, and (c) to afford reasonable weight to the account given by him and to act on the account accordingly. The House held that it was not. The correctness of that conclusion is not in question. On ordinary principles, behaviour which is merely insensitive is not normally actionable, even if it results in a psychiatric illness.

61.       Lord Steyn recognised that this was a novel type of claim, to which Lord

Bridge’s observations in Caparo applied. As in Elguzouli-Daf, he based his

approach to the question whether it would be right to recognise a duty of care of the

kind alleged on Lord Keith’s speech in Hill. He cited first Lord Keith’s confirmation

of the liability of the police for the negligent infliction of personal injuries in

accordance with the general law of tort. He went on to cite the part of Lord Keith’s

speech concerning whether the police owed a duty of care to future victims in the performance of their investigative function. In the passage on which reliance was placed, he stated (para 30):

“A retreat from the principle in Hill’s case would have

detrimental effects for law enforcement. Whilst focusing on investigating crime, and the arrest of suspects, police officers would in practice be required to ensure that in every contact with a potential witness or a potential victim time and resources were deployed to avoid the risk of causing harm or offence. Such legal duties would tend to inhibit a robust approach in assessing a person as a possible suspect, witness or victim. By placing general duties of care on the police to victims and

witnesses the police’s ability to perform their public functions

in the interests of the community, fearlessly and with despatch,

would be impeded. It would, as was recognised in Hill’s case,

be bound to lead to an unduly defensive approach in combating

crime.”

62. As Lord Toulson noted in Michael, by endorsing the principle in the Hill case in the terms that he did, Lord Steyn confirmed that the functions of the police which he identified were public law duties and did not give rise to private law duties of care in the absence of special circumstances, such as an assumption of responsibility. Nothing in his reasoning is inconsistent with the existence of a duty of care to avoid causing physical harm in accordance with ordinary principles of the law of negligence. Lord Steyn plainly had no intention of undermining the confirmation in Hill that the police were under such a duty of care. The passage cited was directed towards a different issue.

63.       Fourthly, reliance was placed on Smith v Chief Constable of Sussex Police

[2008] UKHL 50; [2009] AC 225, one of two appeals which the House of Lords heard together, the other being Van Colle v Chief Constable of the Herefordshire Police (Secretary of State for the Home Department intervening). The case of Smith concerned the question whether, where a person had informed the police that he had received threats of violence, the police then owed him a duty of care to prevent the threats from being carried out. Applying the established principles discussed earlier, the answer was no, in the absence of special circumstances such as an assumption of responsibility, and the House of Lords so held. The House was not however referred to the line of authority including East Suffolk Rivers Catchment Board v Kent, Stovin v Wise and Gorringe, which would have provided a basis for deciding the case; nor did it rely on the equivalent body of authority concerned with omissions by private individuals and bodies, such as Smith v Littlewoods Organisation Ltd. Those were the bases on which a very similar issue was subsequently decided in

Michael.

64. In Smith v Chief Constable of Sussex Police, the majority of the House were in agreement that, absent special circumstances such as an assumption of responsibility, the police owed no duty of care to individuals affected by the discharge of their public duty to investigate offences and prevent their commission. Lord Hope, with whose reasoning the other members of the majority agreed, followed the approach adopted in Brooks in the passage cited in para 61 above, and emphasised the risk that the imposition of a duty of care of the kind contended for would inhibit a robust approach in assessing a person as a possible suspect or victim.

He acknowledged that “[t]here are, of course, cases in which actions of the police

give rise to civil claims in negligence in accordance with ordinary delictual principles”, and cited Rigby as an example (para 79). Lord Phillips of Worth

Matravers CJ summarised the core principle to be derived from Hill and Brooks as being that in the absence of special circumstances, the police owe no common law duty of care to protect individuals against harm caused by criminals. Lord Brown approached the matter in a similar way, concluding that, in the absence of an assumption of responsibility towards the eventual victim, the police generally owe no duty of care to prevent injuries deliberately inflicted by third parties, when they are engaged in discharging their general duty of combating and investigating crime. None of the speeches is inconsistent with the existence of a duty of care to avoid causing physical harm in accordance with ordinary principles of the law of negligence.

65. Fifthly, reliance was placed on the judgment of the Court of Appeal, delivered by Sir Anthony May P, in Desmond v Chief Constable of Nottinghamshire Police. The issue in the case was whether the chief constable owed a duty of care when providing information to the criminal records bureau about the claimant, so as to enable the bureau to respond to a request for an enhanced criminal record certificate, made in connection with a job application. The chief constable was under a statutory duty to provide such information as was in his opinion relevant and ought to be included in the certificate. It was argued that the chief constable had made an error of judgement in deciding that certain information was relevant and ought to be included, with the result that the job application had been unsuccessful. The claim was for damages in respect of financial loss, stress and anxiety.

66. The court correctly identified the relevant legal principles as being those laid down in East Suffolk River Catchment Board v Kent, Stovin v Wise and Gorringe, and concluded that no duty of care was owed. Reliance was however placed by counsel on an earlier part of the judgment, in which the court considered the cases on which the judge below had based his approach - Hill, Elguzouli-Daf, Brooks, and Smith v Chief Constable of Sussex Police - and explained why, in its view, they did not provide an answer to the case at hand. The court summarised the principle to be

derived from those decisions as being that “in the absence of special circumstances,

the police and the Crown Prosecution Service do not generally in the interests of the whole community owe individual members of the public, be they victims, witnesses or those who are prosecuted, a common law duty of care in undertaking and performing their operational duties of investigating, detecting, suppressing and

prosecuting crime” (para 31). The court went on to state that that principle might not

apply “in exceptional circumstances at the margins; to an ordinary case where, for

instance, in a road accident the police cause personal injury or physical damage by negligent driving; nor to cases where on particular facts a police officer is taken to

have assumed responsibility to an individual claimant” (para 32).

67. That summary of the law appears to treat the police as being generally under no duty of care when undertaking and performing their operational duties, other than in special circumstances. It does not reflect the acceptance of the House of Lords in Hill, reflected also in later cases such as Frost, Alcock and Smith v Chief Constable of Sussex Police, that the police are generally under a duty of care to avoid causing personal injury where such a duty would arise according to ordinary principles of the law of negligence. Nor can a case such as Rigby be distinguished as an exceptional case at the margins: it was treated both in Hill and in Smith v Chief Constable of Sussex Police not as an anomaly, but as an instance of a wider principle. In short, while it is not suggested in the present case that the decision in Desmond was wrong, the particular passage relied on is not an accurate summary of the law.

68. On examination, therefore, there is nothing in the ratio of any of the authorities relied on by the respondent which is inconsistent with the police being under a liability for negligence resulting in personal injuries where such liability would arise under ordinary principles of the law of tort. That is so notwithstanding the existence of some dicta which might be read as suggesting the contrary.

69. In relation to this discussion, it is necessary to respond briefly to some of the points made by Lord Hughes in his judgment:

1. I do not suggest that the discussion of policy considerations in cases such as Hill, Brooks and Smith should be consigned to history. But it is important to understand that such discussions are not a routine aspect of deciding cases in the law of negligence, and are unnecessary when existing principles provide a clear basis for the decision, as in the present appeal. I

would not agree with Lord Hughes’s statement that they are the ultimate

116. For the same reasons, the question whether a statutory public duty gives rise to a private duty or not is a fluid one. Stovin v Wise and Gorringe are examples where no private duty of care was held to exist. Barrett v Enfield London Borough Council, decided after Stovin v Wise, accepted at least in principle the possibility of such a duty in relation to the different statutory scheme there in question.

117. Secondly, there is no firm line capable of determination between a case of omission and of commission. Some cases may fall clearly on one side of the line, and Hill may have been one of them. But the great majority of cases can be analysed in terms of either. Michael could be said to be a case of omission to respond adequately to the 999 call. But it was argued for the claimant as a case of a series of positive acts, such as, for example, misreporting the complaint when passing it from one police force to another. Barrett v Enfield London Borough Council was a case of mixed acts (allegedly negligent placements) and omissions (to arrange adoption). Phelps v Hillingdon London Borough Council similarly involved allegedly negligent examination, also a positive act.

118. 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 examined above and, in the end, in the clear conclusion, as expressed by Lord Hope in Smith (see para 10 above) that the greater public good requires the absence of any duty of care.

119. Likewise the policy considerations will be directly relevant to any suggestion that a duty of care exists towards individuals such as victims, witnesses or suspects via the route of foreseeable risk of psychiatric harm. The law remains uncertain about when a claimant can properly be regarded as a primary or a secondary victim for the purposes of recovering damages for psychiatric harm: see Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455, McLoughlin v Grovers [2001] EWCA Civ 1743 per Hale LJ as she then was, and Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. But it is clear that no duty of care towards victims of crime, witnesses or suspects can be erected on the back of foreseeability of psychiatric harm, and the reason clearly lies in the policy considerations.

120. 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.

121. Of course, where action is brought on the basis of physical harm done by positive act of the police, it will succeed if but only if negligence is proved. As Lord Reed explains at para 75, policing may sometimes involve unavoidable risk to individuals. It may very often involve extremely delicate balancing of choices. Crowd control, hostage situations, violent outbreaks of crime and the allocation of scarce resources where there are large numbers of persons with the potential to offend, even at the terrorist level, are simply examples. Sometimes decisions may have to be made under extreme pressure; at other times they may remain very difficult notwithstanding time for analysis, and there may be a high level of risk that they turn out to be wrong. The question is always not whether, with hindsight, the decision was wrong, but whether in all the circumstances it was reasonable.

The present case

122. I agree that the present case is one of positive act, namely arresting the suspect, which directly caused physical harm. It matters not that the suspect was the first to be in physical contact with the claimant given that the collision with her was by him plus two of the policemen.

123. I confess that I have pondered hard about the finding of negligence. That the suspect might run away was known, but the limited risk that he not only would do so, but also would cannon into a pedestrian if he did, had to be balanced against the duty to effect an arrest promptly. Many might regard the decision when to effect the arrest as a marginal one. But it is important that appellate courts do not second guess trial judges who have had the opportunity to hear the witnesses in person, as well as to examine the CCTV in the light of the way the case is argued. It does not seem to me that even if one were to entertain doubts about how one might oneself have decided the issue, it can be right to displace the finding of the trial judge unless there is error of principle. It is impossible to say that the judge was not entitled to attach the significance he did to the fact that Mr Willan had lost sight of the claimant at the moment he moved in.

124. In those circumstances I would allow the appeal and restore the finding of the

trial judge. The case must be remitted to the court of trial for the still outstanding
assessment of damages.