Chief Constable of Essex Police v Transport Arendonk BVBA (2020)

QBD (Elisabeth Laing J) 23/01/2020

NEGLIGENCE – POLICE

ASSUMPTION OF RESPONSIBILITY: BREACH OF DUTY OF CARE: MOTOR VEHICLES: POLICE POWERS AND DUTIES: STATUTORY DUTIES

A recorder had been correct not to strike out a negligence claim against a police force brought by the owner of cargo stolen from a lorry parked in a secluded lay-by at night while the driver was held at a police station on suspicion of drink driving. The possibility of a duty of care owed by the police was not precluded by statute, and there were no authorities that resolved the issue. The matter needed a full trial of the evidence.

The appellant police force appealed against a recorder’s dismissal of its application to strike out the respondent’s claim for breach of statutory duty and negligence.

The respondent had had a cargo of sportswear being shipped from Belgium to Sheffield in a curtain-sided lorry driven by its employee (L). The lorry was involved in an accident during the evening. L continued for a quarter of a mile after the accident, then stopped in an unlit lay-by surrounded by farmland. The police came to the lorry and, after L tested positive for alcohol in a breath test, arrested him and took him to the police station. During the night, while L was kept at the station, the lorry was broken into and cargo stolen. The respondent’s case was that L had told the police he was not allowed to leave the lorry, that the police took his keys, and that they would not let him call the respondent and did not call anyone on his behalf, in breach of the Police and Criminal Evidence Act 1984 s.56(1). It contended that the police’s actions had amounted to an assumption of responsibility for the security of the lorry and its cargo, and that they knew, because they had been conducting an investigation into a spate of thefts from vehicles in the area, that it was at risk being left there overnight, but did not check on it or make regular patrols of the lay-by. The police submitted that they had no duty of care towards the respondent to prevent the commission of crimes by third parties; that the sole cause of the lorry being left 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 recorder decided that it was not clear that in the circumstances the police owed no duty of care and that it should be a matter for trial with the full facts.

The respondent accepted that its breach of statutory duty case was hopeless, but submitted that the police were liable in negligence on ordinary principles, having taken positive action to leave the lorry unsecured in a remote area known for thefts and refusing to let L call the respondent.

HELD: The court had not been referred to any authority that resolved the issue of whether the respondent had a reasonable prospect of proving that the police had a duty of care in the circumstances, Home Office v Dorset Yacht Co Ltd [1970] A.C. 1004, Alexandrou v Oxford [1993] 4 All E.R. 328, Hill v Chief Constable of West Yorkshire [1989] A.C. 53, Michael v Chief Constable of South Wales [2015] UKSC 2, Robinson v Chief Constable of West Yorkshire [2018] UKSC 4, Poole BC v GN [2019] UKSC 25 considered. The common law proceeded incrementally by analogy with established authorities, Robinson followed. Previous decisions were not to be read as statutes. Unless it was very clear that the duty of care was precluded by statute, the possibility that the police did have a duty could not be excluded. The respondent’s more fundamental point was that the case involved nothing more than basic principles of negligence. It was not a case where the duty was excluded by the authorities. The ambiguity of whether it was an act or omission case, or in the words of Lord Reed in Poole, whether the police had been “making things worse” or “not making things better”, could be resolved at trial, Poole followed. It could be difficult on the facts to tell if a case was about an act or omission; the respondent’s claim had that difficulty, as it shared features of both. It could not be said for sure whether there was a duty of care. It needed a full trial of the evidence. The duty contended for by the respondent was not clearly precluded by the cited violent crime cases, Hill and Michael considered. Its case was that the police had failed to act or provide a service and also took steps that prevented others from making the lorry safe. It was not clearly a case where the police assumed responsibility for the lorry. The respondent had had no choice, as it did not know until after the event what the police had done. It would not be right to strike out the claim without findings of fact. The common law did not generally impose liability for pure omissions. It was arguable that the case might fit one of the exceptions to that rule, as set out by Tofaris and Steel, “Negligence Liability for Omissions and the Police” (2016) 75 CLJ 128, cited in Robinson, Robinson followed. That list of exceptions was not closed. Issues of causation were for trial. The claim for breach of statutory duty was hopeless. Any duty owed was to L not to the respondent. However, that did not preclude a potential duty on the police to tell the respondent the lorry’s location or to let L do that. Such a duty would be in private law, not under the 1984 Act. Section 56 of the 1984 Act was not the appropriate foundation for that duty.
Appeal dismissed

Counsel:
For the appellant: Laura Johnson
For the respondent: Richard Barraclough KC

Solicitors:
For the appellant: DAC Beachcroft
For the respondent: Smith Bowyer Clarke

LTL 28/1/2020 EXTEMPORE : [2020] 1 WLUK 192