Furthermore, in determining a duty of care owed by the police, liability in negligence must be divided into two duty categories; first, the ‘operational’ and second, that concerning crime control. Operational liability concerns with the way the police actually perform their job. It is well established that the police will be held to one a duty of care when they directly cause damage as a result of a positive as or (in some cases) omission , as illustrated in in Rigby V Chief Constable of Northamptonshire [1985]. However, the situation changes when the question is one of liability for harm arising from the investigation and suppression of crime. These concerns with liability arising from criminal control. Here, the courts have been slow to impose duties of care and have used a range of different devices to justify this position.
In the Hill V Chief Constable of West Yorkshire [1989], the House of Lords held that no duty of care was owed by the police to prevent victimisation by the Yorkshire Ripper. Additionally there was no proximity between the police and the victim as the police could have no idea to who or where the next victim would be. This applies to the scenario, where the police cannot locate every individual in the crowd. Also, due to the high number of students at the rally, the police cannot cater to secure every individual. Given that the investigation and suppression of crime must be seen as the primary functions of the police force, and the one that could directly affect a great number of people, it seems strange to us how highly unlikely it is that liability could ever arise in relation to negligent acts or omissions in this area. The police are only held to owe a general duty to the society, or the “public at large”, and so in a relation to this particular activity, a private law duty is not owed to individuals; seemingly no matter how closely connected that individual is the police’s negligence (proximity) and how likely it is that the particular individual may be affected by it (foreseeability).
- P.C Nick
It was earlier mentioned that there was an existing duty between those at the rally and the police, however now one must establish whether Greenwichshire police owe a duty to its officer P.C Nick. As a member of the police force, Greenwichshire police to owe a duty of care to their officers as any employer would.
The facts demonstrate that P.C Nick suffered from psychiatric injury (‘nightmares’ and ‘depression’) from the events that took place at the rally. In order to satisfy for psychiatric injury, there must be proximate relationship between the incident and the plaintiff. This was illustrated in Dulieu V White [1901] where it distinguished between a primary and secondary victim. A claimant who has direct involvement in the incident and is within the range of foreseeable physical injury would qualify as a primary victim. In Page V Smith [1996] a majority of law lords held that reasonable foreseeability for a primary victim is sufficient to bring with it a duty in regards to psychiatric injury. Additionally, a secondary victim was described as one in the position of a spectator or bystander. In applying this and considering that P.C Nick was 15 feet away from the podium yet present during the events that occurred in the incident (proximity), it can be reasonably foreseeable that he may suffer from some form of injury.
In the case of White V Chief Constable of South Yorkshire Police [1999], a negligent action was brought on by four police officers who suffered psychiatric illness following their experiences of the Hillsborough disaster. The case was successful in the Court of Appeal, the establishment of foreseeability having been strongly assisted by the fact that they were employees of the defendant. However, this was reversed in the House of Lords which applied the criteria from Alcock V Chief Constable of South Yorkshire Police [1991] which considered them as secondary victims. Alcock established three criteria which were necessary for finding a duty of care to a secondary victim. These were: a sufficient close relationship of love and affection with the primary victim, proximity to the accident or its immediate aftermath which was sufficiently close in time and space and suffering nervous shock through what was seen or heard of the incident or its immediate aftermath. In the light of this authority, despite that P.C Nick was 15 feet away from the podium, he may satisfy as a secondary victim as he was ‘unable to move’ due to nervous shock that he had seen (‘watched the injuries sustained by his colleagues and the protestors’) and heard during the incident. Additionally, considering that P.C Nick left his position with the police force, this further emphasises on the extent to which the event at the rally had affected his mental health. As a secondary victim, the Greenwichshire police would owe a duty of care to P.C Nick due to the psychiatric injury he suffered from the events that had taken place.
- Gilda
It has already been previously established that there is an existing duty of care between the Greenwichsire police and those at the rally, this include Gilda. As like P.C Nick, Gilda suffered from psychiatric damage from the events that had occurred, it is necessary to establish whether she qualifies as a secondary or a primary victim.
Referring back to the case of Alcock, sight or sound of the accident would continue to satisfy the test of proximity. Gilda was directly involved I the incident thus it is reasonably foreseeable for her to suffer some form of injury. As Gilda was not closely related to the victims in the rally, yet was present during the horrific events, she would qualify as a secondary victim.
In Hambrook V Stokes Bros [1925], the shock which results from what is seen or perceived by a plaintiff’s own unaided senses is recoverable. This supports that fact that Greenwhichshire police may owe a duty of care to Gilda, as she is a secondary victim did suffer from psychiatric injury due to the horror she witnessed during the rally.
- Dave
The facts suggest that Dave was not directly involved in the rally, but however watched his sister Kate on television minutes before the crushing began. As Dave shares a close relationship of love and affection with the primary victim, Kate, he may qualify a secondary victim, as illustrated in Alcock. However, to establish that a duty of care is owed by the Greenwichshire police, Dave must be able to convince the court that there was in fact a loving relationship between himself and his sister.
If Dave proves successful in establishing the first ‘Alcock criteria’, then the courts will look to see whether it is fair just and reasonable for a duty of care to exist. The scenario states that Dave was called to identify Kate’s body 5 hours after the tragedy from which he suffered nervous shock. The third Criteria in Alcock suggests that there must be a close proximity to the accident or its immediate aftermath. In McLoughin V O’ Brian [1982], a mother was told over the phone of her family’s involvement in a motoring accident. Two hours later she witnessed their body and suffered from nervous shock. The House of Lords held that as a secondary victim, her damage was foreseeable owing her relationship to the victims and there was proximity to the accident because she was witness to its ‘Immediate aftermath’. In Alcock however it was held that viewing a body nine hours after the incident would not qualify as ‘immediate aftermath’. How far the aftermath will extend is uncertain and so is left for the courts to decide. However, considering that 5 hours is fairly far from what is defined as ‘immediate’, it may be possible that a duty of care would not be owed to Dave. Dave does not have a geographical proximity to the events and considering that 5 hours is a long time and far from what be called ‘immediate’ it may be possible that a duty of care does not exist. Having a close relationship with the primary victim is not enough to suffice for an existing duty. Thus it may be concluded that Greenwichshire Police do not owe a duty of care to Dave.
In conclusion, there are a number of policy reasons as to why negligence against the police may be limited. The police’s general sense of public duty would not be reinforced by negligence liability, as this would lead to defensive policing. Additionally defending negligent actions would be demanding money, time and man power, thus diverting the police from their main function. It is mainly due to these reasons that the House of Lords rejected the claims in Alcock.
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Bibliography
Haven V Pender [1883] LR 11 QBD 503 (CA)
Donoghue V Stevenson [1932] AC 562
Donoghue V Stevenson [1932] AC 562
Carol Brennan, (2011), Concentrate Tort Law, United States, Oxford, page 12
Home Office V Dorset Yatch [1970] AC 1004
Anns V Merton LBC [1978] AC 728
Yuen Kun Yeu V Attorney General of Hong Kong [1988] AC 175
Vera Bermingham, (2011), Nutcases Tort, 6th edition, United Kingdom, Thomson Reuters, page 40.
Caparo Industries PLC V Dickman [1990] 2 AC 605
Bharma V Dubb (T/A Lucky Caterers) [2010]
Rigby V Chief Constable of Northamptonshire [1985] 1 WLR 1242
Dulieu V White& Sons [1901] 2 KB 669
Page V Smith [1996] AC 155
White V Chief Constable of South Yorkshire Police [1999] 2 AC 433
Alcock V Chief Constable of South Yorkshire Police[1991] 1 AC 310
Hambrook V Stokes Bros [1925] 1 KB 141
McLoughin V O’ Brian [1982]1 AC 410
Haven V Pender [1883] LR 11 QBD 503 (CA)
Donoghue V Stevenson [1932] AC 562
Donoghue V Stevenson [1932] AC 562
Carol Brennan, (2011), Concentrate Tort Law, page 12
Home Office V Dorset Yatch [1970] AC 1004
Anns V Merton LBC [1978] AC 728
Yuen Kun Yeu V Attorney General of Hong Kong [1988] AC 175
Vera Bermingham, (2011), Nutcases Tort, page 40.
Caparo Industries PLC V Dickman [1990] 2 AC 605
Bharma V Dubb (T/A Lucky Caterers) [2010]
Rigby V Chief Constable of Northamptonshire [1985] 1 WLR 1242
Hill V Chief Constable of West Yorkshire [1989] AC 53
Dulieu V White& Sons [1901] 2 KB 669
Page V Smith [1996] AC 155
White V Chief Constable of South Yorkshire Police [1999] 2 AC 433
Alcock V Chief Constable of South Yorkshire Police[1991] 1 AC 310
Hambrook V Stokes Bros [1925] 1 KB 141
McLoughin V O’ Brian [1982]1 AC 410