Jacob Eisler: Robinson v. Chief Constable of West Yorkshire Police, 2018 UKSC 4

When, in the performance of their roles, do public authorities owe a private law duty of care to those harmed by their actions, and thus face common law tort liability if they discharge their state functions carelessly? The latest case on duties for public authorities, Robinson v. Chief Constable of West Yorkshire, indicates that the private duties owed in tort by public entities are the same as any other party under the common law. Robinson involved a positive act by police which harmed an innocent bystander; the UKSC was unanimous that the police owed a private duty of care to the victim. The leading opinion by Lord Reed was unequivocal that public authorities face the same test for common law duty of care as any other entity, rather than enduring higher, enjoying more lenient, standards. While Lord Reed’s analysis offers a compelling synthesis of legal precedent, the alternative approach advanced by Lord Hughes and Lord Mance raises questions regarding the durability of Lord Reed’s reasoning.

Facts and Legal Context

The importance of Robinson requires contextualizing it within the past few decades of case law on common law duty of care for public authorities. In Anns v. Merton [1978] A.C. 728, 757, Lord Wilberforce infamously suggested that so long as there is sufficient proximity between the claimant and the defendant, a private law duty of care may exist, including when such proximity is derived from a general statutory duty. Anns indicated that when there is such proximity, a duty of care should only be denied when courts identify  policy reasons that cut against such expansion of duty. Anns produced a confusing efflorescence regarding when public authorities might be liable for their careless acts at common law, andmay be the most heavily criticized tort case of the past half-century. Its suggestion that statutory duties could produce common law private duties was finally put to rest by Brentwood v. Murphy [1991] 1 A.C. 398, 481 (Lord Keith), and its expansive general test for duty of care was replaced by the tripartite test of Caparo v. Dickman [1990] 2 AC 605 (Lord Bridge). Since Brentwood and Caparo there has been a general retreat from the identification of private law duty for public authorities, including even where those public authorities might owe a general statutory duty to the public, Gorringe v. Calderdale, [2004] 1 W.L.R. 1057, 1078. The retreat continued most recently with Michael v. The Chief Constable of South Wales, [2015] UKSC 2. After the victim called 999 to report an imminent threat from her violent ex-partner, a botched dispatcher response resulted in the delayed arrival of police; in the interim the caller was killed by her ex-partner. While recognising that the tragic circumstances may have been indicative of broader social and structural deficiencies in policing, Lord Toulson classified the polices’ misfeasance as an omission, which ordinarily will not generate a common law duty of care. On the principle that public authorities face the same assessment of common law duties as private parties, he consequently declined to conclude that the police owed a duty of care to the victim. In examining the tangled intersection of public services responsibility and omissions liability, Michael is characteristic of the leading pre-Robinson cases that address if public authorities have a private law duty of care.

Unlike the legally intricate plight of Michael, the facts of Robinson are quotidian and suggest no systemic failure of the police system. For the purpose of legal analysis, the relevant difference is that the harm flowed from a positive act, rather than an omission. A group of four police officers identified a suspected drug dealer, and accurately predicted he might resist being taken into custody. They thus sought to arrest him in a manner that would both prevent the suspect’s escape and minimize risk of harm to passers-by. Two officers positioned themselves at a distance to cut off potential routes of escape, while the other two officers confronted the suspect. When the suspect resisted, the result was a disorganized tussle of the three persons on the sidewalk. Unfortunately, the police officers had failed to notice, or failed to appropriately consider the position of, an elderly passerby who was a yard away when the arrest was attempted. The three-person scrum proceeded to collide with and fall on top of this passerby (the claimant Ms. Robinson). She proceeded to sue the police for physical harm and medical expenses she suffered in the collision.

Defining Duties of Care for Public Authorities

The critical question before the Supreme Court in Robinson was if the police owe a common law duty of care to avoid harming bystanders in the pursuit of criminals. This in turn hung on two more general questions: what is the appropriate method for identifying a duty of care? Once this method is identified, how is it applied to public authorities? With regards to the first question, Lord Reed’s leading opinion was unequivocal: where courts must consider a new question regarding duty of care, the analysis should, per Caparo, proceed incrementally and by analogy with established authority, seeking to ensure consistency with standing law while also serving the interests of justness and fairness.

This mandate to seek consistency with existing duties of care clarified the next question for the Court: what common law duties do public authorities owe in general? Engaging in a painstaking synthesis of the existing law, Lord Reed concluded that public authorities owe the same general duties of care as anyone else: “if conduct would be tortious if committed by a private person or body, it is generally equally tortious if committed by a public authority” [33], a point that applies as much to the police as to any other public authority [55]. Since the harm to the Ms. Robinson was caused by a ‘positive act’ (a collision), the police owed a duty of care. Robinson thus explicitly rejected the view that police have general immunity against claims in negligence (a view Michael likewise disfavoured).

Lord Reed’s analysis has two features of immediate note. First, by emphasizing that public authorities in general and the police in particular have no special status vis-à-vis common law duty of care, his treatment squelches any line of reasoning that public authority duty of care deserves unique treatment. Second, he painstakingly interpreted the long line of cases that held public authorities have no private duty to particular members of the public to express only the general proposition that, absent narrowly defined and well-established exceptions, there is no private duty created by omission. This is a clever interpretive move, because it allowed Lord Reed to characterize his conclusion not as a break with past precedent, but rather as conformity to a well-established approach. While, unlike most leading cases on the existence of a private duty for public authorities, Robinson did impose a duty of care, Lord Reed could argue that this was a function of consistent application of common law duty of care analysis rather than a novel finding. In particular, he diligently maintained analytic consistency with Lord Toulson’s opinion in Michael. Lord Reed could thus assert Robinson did no more than affirm the broad application of conventional tort principles, and further maintain that this approach has been determinative for public authority common law duty of care since Anns was disfavored.

Robinson thus indicates that public authorities will neither face more stringent responsibilities due to their responsibility to serve the public, nor enjoy special leniency due to their weighty collective obligations. One interesting facet of this is that Robinson seems to continue the trend (which has been building momentum since the fall of Anns) of disfavouring the view that statutory powers and duties can create private common law duties [36]. A statute can, of course, include Parliamentary instruction to create a private right of action, which the courts will enforce. But Lord Reed is explicit that statutory duties are irrelevant to ascertaining the independent presence of a common law duty. This separation of statutorily created duties and duties at common law facilitates Robinson’s general point that public authorities and private parties will face the same analysis in determining if they owe private law duties. One general implication is of particular public law import: any duties of care for public authorities that do not flow from general common law principles now must be made by clear statutory indication that there should be a private right of action.

Is Identifying Duties of Public Authorities the Ineluctable Domain of Policy?

While agreeing that the police owe a duty to Ms. Robinson, Lord Hughes and Lord Mance advanced a fundamentally different approach. Both suggested that, rather than best explained through conformity to established precedent, identification of a duty of care in Robinson resulted from pure consideration of policy [84, 95, 113, 118]. Their reasoning expresses both general skepticism that incremental interpretation of precedent can definitively guide duty of care analysis in close cases, and specific doubts that the available precedents that had identified general common law duties for public authorities were relevant to the situation in Robinson [96]. In their view, close duty of care cases inevitably reflect normative assessments characteristics of policy analysis. Thus, in the view of Lord Hughes and Lord Mance, the conclusion in Robinson is best understood as a fresh policy judgment. However, this alternative view faces one immediate obstacle: Lord Reed’s narrative convincingly weaves together past precedent (in particular the elegant dovetailing with Michael), thus providing both an elegant account of the law’s development and broader support for the incrementalist approach.

There is, however, a deeper point to the alternative view. Any legal judgment regarding private duty of care ultimately devolves upon norms of interpersonal obligation. These interpersonal obligations are generally activated by positive acts, and are not activated by omissions; it is this feature that allows Robinson to be reconciled with Michael and its predecessors. Yet there are universally acknowledged exceptions: when a defendant party assumes control over another party, and then negligently omits to control them and they do damage, or assumes a positive responsibility to safeguard a party, and then omits to do so, and the party suffers damage, the defendant party may be liable. This is because the defendant party has, by its conduct, assumed a special role that changes its interpersonal obligations.

It seems difficult to deny that public authorities have a unique social status as creations and expressions of the collective political project. It is thus possible to imagine how they might be held to have unique responsibility over those participants in this project who are especially dangerous to other participants, or unique obligations for participants in this project to protect them in a manner analogous to no private party. Likewise, one could imagine the pressures upon public authorities that would enable policy arguments that their only obligations should be towards the collective good. In light of this, Robinson and Michael can be taken as standing for the proposition that, given current normative beliefs regarding the status of public authorities, neither of these classes of special considerations applies, and thus they receive identical treatment for duty of care as private parties. Yet this conclusion depends upon contemporary policy suppositions regarding public authorities; such political values can be malleable or transitory. Should such values change, particularly rapidly, the incremental approach Lord Reed champions may not always serve justice. In particular, his explanatory framework would lose force if changes in values ended the parallel treatment of duty for public and private actors.  In short, the claims of Lord Hughes and Lord Mance that assertions regarding public authorities are always judgments of policy may be true in a foundational sense, even if the development of the jurisprudence has allowed Lord Reed to assert perfect congruity between public and private treatment of duty of care.

A Broader View of Robinson

The general interpretive and political implications of Robinson’s reasoning are diverse. As a simple holding, it eliminates any doubt that when public authorities negligently cause harm, they should be held to the same standards as private actors. It is thus a ‘progressive’ decision in refusing to uniquely shield state actors from the common law consequences of their actions. But this reasoning cuts both ways: following Robinson, it will be difficult for parties to argue that public actors have any special obligations for the purposes of private law. In particular, in firmly rejecting the idea that statutory duties can create independent rights at common law, Lord Reed closes off one route by which claimants might assert state actors have obligations to those harmed by the actors’ careless conduct. This is exemplary of the way in which Robinson stands for the broad proposition that state actors, at least in this domain of negligence, have no special moral status. This is a morally minimalist view of state conduct that might be classified as ‘conservative’.

In a world of perfectly rational institutional behaviour, Robinson might should support popular autonomy. By placing public authorities on the same footing as private ones for the purposes of tort analysis, the Supreme Court has passed initiative back to Parliament to generate any exceptions to common law rules, either by creating explicit statutory private rights for public authorities or for carving out explicit domains of immunity. Indeed, one could argue any holding other than Robinson would arrogate the function of governance to the courts rather than Parliament. Yet given the reality that Parliamentary conduct may not always be responsive to the needs of justice (at least not without judicial prompting), it might be queried if the anti-exceptionalism of Robinson’s reasoning towards public authorities cuts off a prospective means for inducing legal innovation.

Jacob Eisler, College Lecturer and Yates Glazebrook Fellow in Law at Jesus College, Cambridge

(Suggested citation: J. Eisler, ‘Robinson v. Chief Constable of West Yorkshire Police, 2018 UKSC 4′, U.K. Const. L. Blog (14th May 2018) (available at https://ukconstitutionallaw.org/))