Dear colleagues,

The UK Supreme Court has this morning handed down judgment in Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, covering among other things the scope of the fair, just, and reasonable limb of Caparo, and the Hill immunity.

Mrs. Robinson, the claimant-appellant in the case, was a bystander during an arrest.  The arresting officer failed to notice her presence during the arrest.  In the struggle between the police officers and the offender, Mrs. Robinson was knocked down, and suffered injury.  The Court of Appeal held that the three-stage Caparo test applied to the case, and it would not be fair, just, or reasonable to impose a duty of care on the police.  It also held that the Hill immunity applied in general to the law of negligence.  The Supreme Court unanimously allowed Mrs. Robinson’s appeal.  Lord Reed, delivering the leading judgment held that the idea that Caparo established a tripartite test is mistaken. Caparo should be not read as implying that the courts will only impose a duty of care if it is fair, just, and reasonable to do so.  Hill does not confer a blanket immunity, and should be read in light of the act / omission distinction.

A few excerpts follow:

“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. […]

“26. […] 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 [...]

“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”.

“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.

“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.”

The judgment is available here:

https://www.supremecourt.uk/cases/docs/uksc-2016-0082-judgment.pdf

Best wishes,

Arvind