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Updated on December 4, 2009

It appears that Tort Law discriminates between different types of defendant, for example public bodies, rescuers or children, when establishing a duty of care.

Justice Burroughs in the RICHARDSON V MELLISH case described public policy as " a very unruly horse and when you get astride it you never know where it will carry you", that was almost two centuries ago.

Tort law depends very often on the breach of a duty of care giving rise to compensating loss. Whether or not a duty arises depends on whether or not it is imposed. Duty of care can arise at common law, for example under the neighbour principle articulated by Lord Atkins in the case of DONOGHUE V STEVENSON and expanded upon by Lord Bridge in CAPARO V DICKMAN or it can be imposed by statute.

Whether or not a duty of care arises or is imposed can often be a matter of policy and that policy may lead to different types of defendants being treated differently from others, from the point of view of whether or not they are under a duty of care and if so the extent of that duty of care.

The issue of whether tort law discriminates between different types of defendant requires an examination of a range of defendants and an analysis of how they are treated in the context of the Tort system. This essay will concentrate on two specific groups and that is the police and children.

The reason espoused for certain immunities is policy. Policy has always been a major consideration in determining liability in negligence. As Winfield and Jolowicz put it ‘... The court must decide not simply whether there is or is not a duty, but whether there should or should not be one’

As the basis of any decision as to duty of care will be policy it can fairly be asked whether there is any difference between proximity, just and reasonable, and policy. Would a court be prepared to find that there was proximity and then say it was not just and reasonable to impose a duty or vice versa? No clear answer to this can be given just yet, but the indication in CAPARO V DICKMAN was that proximity could be used as a comprehensive term embracing all three. The expression ‘policy’ seems to have changed in meaning with the recent cases. Under the old ANN’S V MERTON test, policy had a broad meaning which encompassed proximity, fair and reasonable and public policy in the narrow sense in which it is now used.

It has been explained by academics Markesinis and Deakins’ that “local authorities and certain other bodies with public responsibilities do not enjoy a general immunity from tort action, but as a matter of policy they are treated differently from private citizens and corporations for the purposes of the duty of care in negligence”.

“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 actions or omissions. Instances where liability for negligence has been established are shown in the cases of KNIGHTLY V JOHNS and RIGBY C CHIEF CONSTABLE OF NORTHAMPTONSHIRE

Perhaps the case which in many ways illustrates policy at work is the case of HILL V CHIEF CONSTABLE OF WEST YORKSHIRE (1989). In this case, the estate of the Yorkshire rippers’ last victim sued the police authority, arguing that, with the exercise of reasonable care, he would have been caught earlier. The court held that although police officers could be liable in tort to persons injured as a direct result of their acts or omissions, there was no general duty of care owed by them to identify or apprehend an unknown criminal, and nor did the police owe legal duty to individual members as there was insufficient proximity; it was also held that the action was barred on the grounds of public policy. Furthermore although it could have been reasonably foreseen that Sutcliffe, if not apprehended, would be likely to harm young female members of the public, the fact that the claimants daughter had been young and female did not of itself place her at special risk and there being no other addition characteristics capable of establishing a duty of care owed towards her by the defendant in relation to the apprehension of Sutcliffe. The appeal court stated that it had been right to strike out the statement of claim as disclosing no cause of action.

The decision in Hill provided police officers with much immunity from negligence actions arising from the way in which they went about their job, preventing and dealing with crime. As well as using the reason of the lack of proximity between the police and the young woman who was murdered, the House of Lords pointed out that there were other policy reasons for not imposing a duty of care on the police in such cases. The fear of them being sued might cause the police to do their work with a view to preventing liability, which could greatly affect their performance.

For the reasons mentioned in the case of HILL, it was held that the police could not be held liableIn the case of ALEXANDROU V OXFORD, when property was stolen and the police failed to properly check following an alarm call. The police were once again immune. All these cases failed on the essential matter of establishing a duty of care.

A similar approach was taken in the case of HUGHES V NATIONAL UNION OF MINE WORKERS where the claimant police officer was injured by striking miners and he alleged that the Chief Constable had deployed the police force negligently, thus exposing the claimant to a greater risk of injury.

Another case which also illustrates the fact of police negligence but for which they were not held to owe a duty of care is the case of ANCELL V MCDERMOTT. In this case, motorists were left to face a hazardous situation because the police had failed properly to deal with a road hazard. In this case it was held that the imposition of a duty of care on the police to protect road users from hazards caused by others would be so extensive as to divert the police from proper functions of detecting and preventing crime.

Various suggestions have been made regarding the enforceable duties of the police. The police are more concerned with warding off legal action than with engaging in their proper duties in a professional manner.

The above cases effectively demonstrate that the courts are highly reluctant to show that the police owe a duty of care irrespective of their failings.

The type of blanket immunity from negligent actions enjoyed by the police has in led to the issue being challenged in a Human Rights context.

The case of OSMAN V UK concerned the incidents, consequences and effects of an unusual obsession by a teacher on a 15year old boy. The police were told of the teachers’ behaviour on various occasions but they failed to act appropriately and on time. The European Court of Human Rights (ECHR) said that the application of blanket immunity for the police was a breach of article 6 which requires that in determination of civil rights everyone is entitled to a hearing by the tribunal. “The enactment of the Human Rights Act 1998 and a judgement from the ECHR concentrated judicial minds on the problems created by public policy immunity and the practise of striking out in the context of Article 6 of the European Convention (The right to a fair trial)”. The immunity given to police officers was successfully challenged in this case.

A careful scrutiny of the events leading up to the tragic shooting incident revealed that the police were several times put on notice that the lives of the claimants were at real risk from the threat posed by Paget-Lewis. Despite the clear warning signals given, the police failed to take appropriate and adequate preventive measures to secure effective protection for their lives from that risk. The police seriously mishandled this case by giving the defendant the opportunity to avoid arrest and abscond.

The family had recorded and reported incidents to the police albeit to no avail as death and serious injury resulted. The House of Lords said that there was no duty to potential victims. Lord Templemen said “If a duty is recognised every citizen will be able to investigate the performance of every policeman.... The threat of litigation against a police force would not make a policeman more efficient. The necessity for defending proceedings...would distract a policeman from his duties.”

Prior to the case of OSMAN, there were many cases, as indicated above, bought before the courts where the police had been very clearly negligent, but they had walked away scot-free.

A clear line needs to be drawn between cases like OSMAN, where the claimant was particularly at risk from the police’s failure to act, and cases like HILL, where the claimant was only at risk in the same sense that a great number of other people were as well.

The true effects of the Osman decision perhaps remain to be seen. Nevertheless there is no doubt that issues of fairness, justice and reasonableness come into play in recognising a duty. The decision also cast out on the English courts approach to negligence where the case involved the police and questions of policy. The case of BROOKES V COMMISSIONER OF POLICE FOR THE METROPOLIS is a clear signpost to the fact that the core principles of Hill remain unchallenged. The claimant in this case was a friend of the murdered teenager, Stephen Lawrence, who was killed in a racist attack. He claimed that he suffered post-traumatic stress disorder both as a result of the handling of the crime investigation and as the result of his own treatment as a witness and as a victim. The police investigation into the murder was grossly mishandled, and eventually became the subject of an official inquiry. Its report concluded that one of the problems was that when the police found Mr Brookes at the scene, agigated and aggressive, they assumed that there had been some kind of fight, rather than that he and Stephen had been attacked and that he was he was understandably disturbed by what he had seen, and by the delay in the ambulance arriving. This mistake was a result of racist stereotyping and because of it the police had failed to treat him as a victim and did not at first take his evidence seriously. Mr Brookes suffered post-traumatic stress disorder after the incident as a result of this. Mr Brookes claimed that his treatment by the police had made it worse and he sued them for negligence. The House of Lords would not accept that the police owed any duty in these respects. They also relied on the policy arguments put forward in Hill, pointing out that the primary duty of the police was to investigate crime, and that their time and resources would be diverted from that duty if they had to start taking steps outlined above every time they dealt with a potential victim or witness.

The reasoning is not unlike that in Hill, that to allow potential liability to witnesses and victims of crime would prevent the police from concentrating on their primary functions and would lead to a very defensive approach tackling crime.

Although it would be rare for a duty of care to be found in cases involving police investigations of crime, the House of Lords agreed that there might be exceptional cases or as Lord Keith put it ‘cases of outrageous negligence by the police’ that could fall beyond the general principles in Hill.

In the case of WATERS V METROPOLITAN POLICE COMR, the House of Lords held that police immunity did not apply to a negligence action bought by Waters, the police officer who claimed she was the victim of a serious sexual assault by another officer. Her complaint about this made her the target of harassment and victimisation by other officers. She sued the commissioner for negligent handling of her complaint. The Commissioner applied to strike out her claim on the authority of HILL. It was held that the victims’ complaint was in essence no different from a complaint of an employee against an employer, and so was very different from a claim by a member of the public as in Hill.

All the cases that have been discussed have brought to our attention that the courts will rarely find that the police owe a duty of care to the public in general. Some claimants may now be able to avoid the duty of care hurdle in police cases by bringing an action under the Human Rights Act 1998, rather than in negligence. This was introduced in the case of VAN COLLE V CHIEF CONSTABLE OF HERTFORDSHIRE CONSTABULARY. In this case the police had breached the claimant’s right to life under Article 2 of the Human Rights Act 1998. The police based their defence on the policy arguments put forward in Hill and BROOKS, but the courts concluded that the arguments were the same as the ones that had led the European courts of Human rights in OSMAN to conclude that the police had an obligation under Art.2 to provide protection in that case.

An extremely recent case which also deals with the way in police officers handle their duties and are more often than not, negligent, is the case of Jean Charles De Menezes, the Brazilian man who was shot dead. The police thought that he was a terrorist as they felt that he was acting in a very strange manner, but they had no immediate evidence of this. The police officers were negligent in the way that without any evidence at all, they shot the man 7 times before killing him.

The Metropolitan police were found guilty of a ‘catastrophic series of errors’ during the operation that led firearm officers shooting Jean Charles de Menezes dead on the London Underground. The police were merely fined after an Old Bailey jury had found that it had breached health and safety rules and failed in its duty to protect members of the public in the killing of the innocent Brazilian electrician at Stockwell station, South London, on July 22, 2005.

Nevertheless it would be inaccurate to say that there are no cases where police are found to have no duty of care. In recent times there seems to be emerging case law where courts are finding police negligent as they would do with anybody else. In the following cases it has been established that the HILL immunity is not absolute.

In the case of SWINNEY V CHIEF CONSTABLE OF NORTHUMBRIA POLICE (1996) the police were held to have a duty of care to a particular claimant as she had supplied them with information regarding a criminal, and in the case of SWINNEY V CHIEF CONSTABLE OF NORTHUMBRIA POLICE (NO 2) (1999) the claimant was a landlady who had given the police information concerning the identity of a hit-and-run driver who had killed a police officer. The claimant made it very clear that she was giving them information confidentially and did not want to be identified as its source. Nevertheless, the police recorded her as an informant in a document containing the details she had supplied.Relevant documents were left in a police car, in an area notorious for theft. The documents were stolen and found their way into the hands of a killer who terrorised Swinney and her husband. The claimant was so badly affected by this that she suffered psychiatric illness and was forced to give up running her pub. When the claimant tried to sue the police for negligence concerning the information she supplied, the police argued that there was no relationship of proximity between them and the people who had made the threats that would justify making the police liable for the actions of this third party, and that there were policy reasons, similar to those described in HILL, why they should not be held to have a duty of care towards the claimant, However the court of appeal disagreed.

It would however be a biased essay if it left the reader with a suggestion that it is the police and the police alone who are treated favourably with respect to the duty of care.

Another group of defendants who are treated differently in the eyes of the Law are children. The standard of care for a child is measured objectively; however the courts look at whether standards differ according to the type of person who owes a duty. The standard of care for a child is that of an ordinary careful and reasonable child of the same age and development.

The traditional view for children is that there is no age below which a child cannot be held to be guilty of contributory negligence. This view has been challenged by Lord Denning.

In the case of GOUGH v THORN (1996), the plaintiff was 13-years-old. A lorry driver signalled to her to cross the road. She did so without stopping to see if the road was clear. She was run over by a car travelling at excessive speed and overtaking on the wrong side. The court held that taking into account the girls’ age (13-years-old), she had not fallen below the expected standard of care and therefore was not guilty of contributory negligence. If she had been an adult the position would have been different.

Lord Denning stated “A very young child cannot be guilty of contributory negligence. An older child may be; but it depends on the circumstances. A judge should only find a child guilty of contributory negligence if he or she is of such an age as reasonably to be expected to take precautions for his or her own safety; and then he or she is only to be found guilty if blame should be attached to him or her.”

An example of a case for children is MCHALE V WATSON (1966). In this case a 12 year old boy injured a girl in the eye when he threw a steel rod at a post. There was held to be no negligence. Another example of a children’s case is the case of MULLIN V RICHARDS (1998). In this case the court of appeal held that the correct test was whether an ordinary careful and reasonable 15-year-old would have foreseen that the game carried a risk of injury. Again, there was no negligence. In the case of GLASGOW CORP V MUIR (1943) the House of Lords held that, judged by the standards of the reasonable man, there was no liability. Another case to illustrate the above statement is the case of YACHUK V OLIVER BLAIS (1949) where it was held that the child was not negligent as he did not know and could not have been expected to know the dangers of petrol. It is very unlikely that young children would be found contributory negligent as they cannot be expected to have sufficient awareness and experience to guard their own safety.

All the above cases show us that there is a difference in the requirements set out for adults and requirements set out for children.

It can be seen from above that when establishing a duty of care different types of defendants are treated with varying leniency. This is clear unequivocal discrimination justified on policy grounds and as such the differentiation is intentional. Examining the reasons for this differentiation, the following comments may be made. Police officers get off very lightly in the most extreme cases. In a case where a defendant would be held liable, clearly the office held affords advantages over other defendants and it is contended that this is unfair to victims and other defendants. As far as children are concerned the situation is similar though perhaps not so robustly stated as that of the Police.

Whilst it is understandable that the standard of care in negligence never amounts to an absolute duty to prevent harm to others, it is not understandable that the yardstick by which duty is measured is so variable and discriminatory!




1.    Cooke, J., “Law of Tort”, Chapter 3: Duty of care, edition 8th (Pearson Logman, 2007)


2.    Rogers,W.V.H “Winfield & Jolowicz On Tort”, Chapter 5: Negligence: Duty and Breach, edition 16th (Sweet & Maxwell, A Thomson Company 2002)


3.    Deakin, S., Johnston, A., Markesinis, B., “Markesinis and Deakin’s Tort Law”, Chapter 2: Duty of care, edition 5th, (Oxford University Press 2003)


4.    Elliot, C., Quinn, F., “Tort Law”, Chapter 2:Negligence, edition 6th (Pearson Longman 2007)


5.    Turner, C., “The Comprehensive guide to all the facts- Tort law, Chapter 2: Negligence, Martin, J., Tuner, C., (editors), edition 2nd (Hodder Arnold, 2005).


6.    Turner,C., Hodge,S., “Unlocking TORTS”, Chapter 3: Negligence, Duty of care, Martin, J., Tuner, C., (editors), edition 2nd (Hodder Arnold, 2007).


7.    Kidner, R., “Casebook on Torts”,Chapter: Breach of duty, edition 9th


8.    Hedley, S., “Tort Law”, Chapter 2: Duty of care, edition 5th (Core text series)


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