Northern Ireland Court of Appeal considers negligence claims and assumption of responsibility in the Police

Magill v Chief Constable of the Police Service of Northern Ireland [2022] NICA 49

The Court of Appeal in Northern Ireland recently considered negligence and the concept of assumption of responsibility in the context of claims against the police.

Although this is not a binding precedent for courts in England & Wales, it will undoubtedly be a persuasive precedent. The interesting judgment reviews and applies case law from England & Wales in coming to its decision. If the judgment is appealed it would be heard in the UK Supreme Court.

Facts

The claimant sued the police for failing to intervene and prevent him from suffering physical injuries.

The claimant was an Orangeman who was taking part in a Twelfth of July parade. Whilst taking part in the parade, the marchers were brought to a halt by police and this led to the claimant being hemmed in, with protestors throwing missiles over a cordon. The claimant was struck ten times by said missiles and sustained a crush injury to his foot inflicted by a heavy object.

During the attack, police are said to have taken shelter by standing beside their vehicles and under trees. The claimant brought a personal injury claim against the police on the basis that their negligence caused his injuries.

By the time the matter reached the Court of Appeal, the statement of claim made allegations of both acts and omissions against the police (as will be discussed below, this was not always the case). The acts included stopping the parade in the first place and then leaving the parade stationary for ten minutes in a circumstance where they were trapped close to protestors. The omissions included the failure to stop the attack once it started, failing to provide adequate numbers of police and a failure to prevent the attack.

The court described it as a case of “careless acts coupled with omissions causing or making a material contribution to personal injury to the plaintiff”.

The police’s defence was that no duty of care was owed by the police to the claimant, as there is generally no duty of care owed by the police to protect members of the public from harm inflicted by third parties. Lawyers representing the police applied to strike the claim out.

The Judgment

The NI Court of Appeal upheld the decision from the lower courts that the claimant should be allowed to continue with his claim and, as such, the application by the police to strike out the claim was unsuccessful.

The court stated that primarily for public policy reasons, legal principles have developed to limit the liability of police officers in negligence for their acts and omissions. In considering this, the court looked at a number of cases from England & Wales. These included:

• Hill v Chief Constable West Yorkshire [1989] – where the House of Lords made a clear distinction between the liability of police officers to persons injured as a direct result of their actions and omissions, and the absence of a general duty to identify or apprehend an unknown criminal. This was stated to be based on both public policy and a lack of proximity between the injured person and the police.
• Michael v Chief Constable of South Wales Police [2015] which focused on the police response to emergency calls from a person who was ultimately killed after reporting threats by her former partner to kill her. The Supreme Court held that there was no duty on the police to protect a member of the public from the acts of a third party.
• Robinson v Chief Constable of West Yorkshire Police [2018] where in contrast the Supreme Court found that there was a duty of care owed to the claimant by the police. This was distinguished based on the ‘operational’ dimension of the case – an elderly lady was knocked to the floor by an officer when they were attempting to arrest a drug dealer. It was found that a duty of care was owed by the police officers to the claimant. This meant that it was possible for the police to owe a duty to protect a person from a danger of injury created by the police. It was held in Robinson that the police are not normally under a duty of care to protect an individual from a danger of injury which they themselves did not create, in the absence of circumstances such as an assumption of responsibility by them.
• Tindall v Chief Constable of Thames Valley Police [2022] was a case of alleged police omissions in an operational situation where police attended the scene of a RTA on black ice, left the scene and then another fatal collision occurred. It was held that no duty of care was owed. For more information see our article: Failure to remove claims update | Keoghs

After analysing this case law, the key findings were:

1. Public authorities generally owe no duty of care to prevent the infliction of harm upon a person by a third party, or to confer a benefit upon a person by protecting them from harm. However, the use of the word ‘generally’ in this context shows that there are exceptions.
2. Leading cases indicate that circumstances in which police may owe a duty of care to a member of the public include cases where a) the police, by their positive conduct and actions create a danger of harm which would not otherwise have existed, or b) police assume responsibility for another person’s care.
3. An intense focus on how a case is pleaded is necessary in every application or appeal of this kind. In this case, the original statement of claim made a case of pure omissions against the police officers concerned, whereas the amended statement of claim recognised that something more was required if the case was to be permitted to proceed. The amended statement made allegations of positive conduct (i.e. acts) by the police. It was this that meant that the claimant’s claim met the threshold for the strike out application to be unsuccessful.
4. The doctrine of assumption of responsibility is not characterised by either exhaustive definition or rigid boundaries. It is open textured in nature and its application will always be intensely fact sensitive.

Comment

As stated above, this case was heard in the Court of Appeal in Northern Ireland. The precedent is, therefore, not binding on the courts of England & Wales. However, it is another example of a potential exception to the general principle that the police do not have a general duty to protect members of the public, and an exception that relies on case law from England & Wales in its analysis. It is likely an English court would consider this persuasive precedent if faced with the same circumstances. If the outcome is appealed, it will be heard in the UK Supreme Court.

It is important to note that this does not mean that the claim was (or will be) successful, merely that the claimant should be allowed to pursue his claim to a trial. LJ McCloskey noted that “this decision … betokens no forecast of ultimate success for the plaintiff”. This has echoes of the outcome of HXA v Surrey Count Council & YXA v Wolverhampton City Council [2022], which was heard recently in the Court of Appeal for England & Wales where it was determined that a full trial of the issues was necessary (see our article: LINK). Both cases merely state that the issues require further consideration at a trial as opposed to a strike out application.

The NI Court of Appeal has emphasised the importance of the acts/omissions distinction. In the context of negligence claims and so called ‘failure to remove’ claims, this was relied on in CN & GN v Poole [2019]. It is clear that this distinction is very important and practitioners need to consider carefully whether the alleged negligence arises from acts or omissions. Indeed, in the Magill case the court commented that the claimant would have been struck out had he not amended his pleadings to include positive acts as well as omissions.

The comments relating to the concept of an assumption of responsibility also have similarities with the judgment in HXA/YXA. The NI Court of Appeal has concluded that cases where an assumption of responsibility are pleaded will be extremely fact sensitive and a careful analysis of the evidence will be necessary. If this approach is followed it could lead to a significant amount of satellite litigation whilst the courts consider the specific facts of each and every case so as to determine precisely what will constitute an assumption of responsibility.

Another interesting point is the comments relating to another of the exceptions pleaded in CN & GN v Poole [2019] – creation of the danger. In Magill, the court refers to ‘creating a danger that would not have otherwise existed’. If this were adopted by the courts of England & Wales it would perhaps be a helpful definition of this concept.

Although not a binding precedent, the application of case law from England & Wales and the conclusion reached are interesting and will likely have a bearing on future cases, particularly whilst the law in this area is unsettled. We await the outcome of this, and other claims, eagerly as we seek certainty in the law surrounding negligence claims against public bodies.